Dispute? Your duty to preserve evidence

Author: Sarah Canning, Head of Dispute Resolution

In accordance with the law of England and Wales, as soon as litigation is contemplated the Court rules require the parties to preserve evidence relevant to the dispute.

As methods of communication and document creation have become more varied over the years, the form of evidence has extended from paper documents and letters to all forms of electronic data which not only include email communication and reports but also messaging sent via Social Media platforms.

Failures to follow these steps and issue retention policies and notices to staff to preserve evidence in a company dispute, for example, could lead to costs consequences being imposed by a Court.

Requirements for preserving evidence in a company dispute

An outline of the requirements is set out below:

• Do not access, amend, delete or destroy any electronic documents that might be relevant to the dispute.  The definition of documents is now very wide and refers anything in which information of any description is recorded.  It can therefore include but not be limited to video, audio recordings, emails, system files, metadata, electronic deleted documents, text messages, social media messages, backup as well as paper records.
• Do not mark or annotate any existing documents that might be relevant to your dispute.
• Ensure that if you have a habit or an automated deletion programme of certain documents that this is put on hold until after the dispute has been finalised.

Your Solicitor will discuss with you the type of documents that are pertinent to your case and there is now an increasing emphasis upon the disclosure of such evidence at an earlier stage in the dispute resolution process.

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk