The duty to preserve documents

05 December 2013

posted in Discovery | Discovery Rules | Litigation | Dispute Resolution | Duty to preserve documents



As discussed in Completing discovery under the "new discovery rules" - almost two years on, the new discovery rules codify the obligation upon a prospective party to Court proceedings to preserve documents in contemplation of Court proceedings. In many instances, steps will need to be taken to preserve potentially discoverable documents before Court proceedings are even commenced; generally from the time a lawyer or expert is engaged in relation to a dispute. At the very latest, the duty to preserve documents is triggered when proceedings are served on a party.

Clients should suspend routine document destruction policies which would otherwise result in the destruction or deletion of potentially relevant documents.

Ordinarily such documents will include:

  • documents on which the party is likely to rely;
  • documents which are likely to adversely affect the party’s own case or another party’s case; and
  • documents which are likely to support another party’s case.

A prospective party should consider the location of relevant documents. This includes both paper documents and electronically stored information or ‘ESI’. Possible locations include:

  • Paper files in a party’s (and in their employees’) office, files in any central filing area, files at home, in archives/storage, or in any other location;
  • Electronic files on a party’s (and their employees’) local or network drive, desktop, laptop, home computer, blackberry, portable or removable drives, flash drives/memory sticks, CDs or DVDs or any other device; and
  • Emails (and calendars) in a party’s (and their employees’) inbox, files, folders, archives, sent folder and trash/recycle bin/deleted items folder.

It is also necessary to consider whether third parties may have discoverable documents in their control (i.e. which the party can compel production of), for instance their lawyers’ and accountants’ files in relation to a matter in dispute. If so, these third parties should be asked to preserve documents. The duty to preserve documents should be communicated to employees as well, if appropriate.

The duty to preserve documents is an ongoing obligation, from the time Court proceedings are reasonably contemplated until the conclusion of the matter, through judgment or compromise/settlement.

For more information, contact Melisa Beight, Senior Solicitor.

Image creative commons licenced by Damian Gadal.

05 December 2013

posted in DiscoveryDiscovery RulesLitigationDispute ResolutionDuty to preserve documents



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