In civil litigation, the importance of preserving documents cannot be overstated.
Whether you are an individual or a business, understanding your responsibilities in this area is essential to ensure compliance with legal obligations and avoid serious consequences.
What Is the duty to preserve documents?
When you become involved in civil proceedings, or even if you reasonably anticipate the possibility of litigation, you are under a legal duty to preserve documents that may be relevant to the case. This duty applies to any documents, electronic or otherwise, that could potentially affect the outcome of the proceedings. Examples include contracts, correspondence, invoices, meeting minutes, and any other records that may provide evidence or context.
This obligation begins as soon as litigation is reasonably anticipated – not just when proceedings are formally issued – and continues throughout the life of the case until the proceedings are concluded or it is clear that no litigation will occur.
Why is it Important?
Failing to preserve relevant documents can lead to significant consequences. Courts take the duty to preserve seriously and may impose sanctions, such as financial penalties, adverse inferences, or even dismissal of a claim or defence, if it is found that key documents were destroyed or withheld. Moreover, failing to meet your obligations could undermine your credibility before the court, which can affect the overall outcome of your case.
Practical steps to preserve documents
To comply with this duty, it is advisable to take the following practical steps:
- Identify relevant documents: As soon as you anticipate litigation, conduct a thorough review to identify all documents that may be relevant to the dispute. Include both physical documents and electronic records such as emails, spreadsheets, and databases.
- Implement a document hold: Inform all relevant staff, contractors, or other stakeholders that they must not delete, alter, or dispose of any potentially relevant documents. This is often referred to as a ‘document hold’ or ‘litigation hold’.
- Secure backup systems: Ensure that electronic documents are backed up and stored securely. This includes maintaining access to archived emails and ensuring that cloud-based storage systems are included in your preservation efforts.
- Follow court orders: If the court issues specific instructions about preserving or disclosing documents, ensure that these are followed to the letter.
- Seek legal advice: If you are unsure about what constitutes a relevant document or how to implement effective preservation measures, consult your legal advisers. They can help you navigate this complex area and avoid unintentional breaches.
Ongoing obligations
It is important to note that the duty to preserve documents is just one part of a broader obligation known as the ‘duty of disclosure’. This duty requires parties to disclose any relevant documents to the other side – even those that may harm their own case – unless the documents are privileged. The duty of disclosure continues throughout the litigation process, and you must notify the other party of any new documents that come to light.
Preserving documents is a critical aspect of civil litigation and one that can significantly impact the outcome of your case. By taking early and proactive steps to safeguard relevant records, you can ensure compliance with your legal obligations and avoid potentially costly repercussions.
If you need guidance on your responsibilities or support with document preservation and disclosure, Hutchinson Thomas Solicitors is here to help. Contact our Civil Litigation team today or contact reception@hutchinsonthomas.com / 01639 645061 with a view to arranging an appointment with one of the team.