Duty to preserve documents in the anticipation of litigation

This note outlines the duties of parties that may become involved in litigation before the Courts of England and Wales to preserve any documents that may be relevant to the dispute as soon as litigation is contemplated.

1. In any proceedings pending before the Courts of England and Wales, the parties will need, at an appropriate stage, to disclose to each other such relevant documents as are in their control (provided the documents are not privileged). "Relevant" documents in this context are not only documents that support your own case, but also those which support the other party's case or adversely affect your own or the other party's case. Such documents are said to be in your "control" if you have a right to a copy of, or to inspect, the document (this may include, e.g., documents held by subsidiaries, agents or ex-employees - not just those documents that are currently in your physical possession).

2. However, under the Civil Procedure Rules of the Courts of England and Wales it is essential for parties contemplating or involved in litigation before the Courts of England and Wales to review (and, as necessary amend or suspend) any document retention policies so that no relevant documents are deleted, overwritten or updated (still less permanently destroyed).

3. It is important to note that the Civil Procedure Rules define "documents" very broadly as "anything in which information of any description is recorded". In addition to hard copy, paper documents (such as agreements, correspondence, memoranda and handwritten notes), this not only includes e.g. photographs and tape recordings, but also specifically electronic documents, which is in turn expressed to include e-mails and other electronic communications (such as instant messaging, SMS and voicemail), word-processed documents, information on databases, documents that are readily accessible from computer systems, including "deleted" items, electronically recorded and stored information obtainable from all portable electronic devices and media (such as mobile phones and memory sticks), information stored on servers and back-up systems and metadata and other embedded data which is not typically visible on screen or a print-out.

4. Note also that the Courts of England and Wales are able to make very intrusive orders with a view to investigating what a party may have done with relevant documents, should it or the other party suspect that certain documents have been destroyed after litigation was contemplated. Failure to preserve all potentially disclosable documents when litigation is contemplated may also give rise to very serious sanctions, including costs sanctions, the striking out of a party's particulars of claim or defence (or part thereof), and/or the drawing of adverse inferences as to the contents of those documents.

5. As soon as litigation is contemplated, a prospective party to that litigation must inform all those who might hold any relevant documents under the control of that prospective party of their duty to preserve such documents.

If you or your relevant IT personnel are in any doubt as to how to go about preserving potentially disclosable documents, please do not hesitate to contact us so that we can assist you devise a method to ensure that you do not fall foul of the stringent requirements of the Civil Procedure Rules.