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When involved in legal proceedings, either current or potential, it’s crucial to understand the importance of preservation of documents and the process of disclosure.


Preservation of Documents

Where Court proceedings have already commenced or if there is a possibility that you may become a party or involved in proceedings, there is a duty placed on you to take all reasonable steps to preserve all documents that are within your control.

In the context of preservation and disclosure for a litigation case “Documents” cover a broad range of materials, including:

  • Emails
  • Text messages/WhatsApp messages
  • Photographs
  • Videos
  • Notes
  • Letters
  • Information stored on hard drives, USB sticks, and other media

In essence, any medium where information is recorded qualifies as a document. It’s important not to destroy or delete any documents and to ensure they are securely stored. This duty extends to businesses, who must also take measures to stop their employees from losing documents.

Consider the high-profile “Wagatha Christie” case as an example of failure to preserve documents covered in the media. In this instance, Mrs Vardy’s agent, Ms Watt, allegedly dropped her phone into the North Sea whilst “filming the coastline” after a Judge had ordered that it should be searched.


What is Disclosure?

It is the stage in litigation where each party must search for and give to their opponents all documents that are relevant to the case, regardless of whether they support your case or not (it’s cards on the table!)

Once you have received disclosure it is a good time to take stock of your case or defence. Disclosed documents are used to build witness evidence and to assist experts give their input.

Documents not disclosed cannot typically later be relied upon at trial (no smoking guns allowed this late on).


Consequences of Non-Compliance with Disclosure Rules

Failure to comply with disclosure rules can lead to serious repercussions, including:

  • Adverse Inferences: The court may draw negative conclusions from missing, misplaced, or destroyed documents.
  • Judicial Scrutiny: You may be required to explain to a judge why documents are missing.
  • Credibility Damage: Your credibility could be significantly harmed, casting a negative light on other evidence provided.
  • Cost Penalties: You might be ordered to pay your opponent’s costs.
  • Re-do Disclosure: The court may order you to repeat the disclosure process.
  • Case Dismissal: In extreme cases, your case or defence could be thrown out.


Legal Guidance from Litigation Specialists

If you have any questions or need advice on document preservation and disclosure, please don’t hesitate to get in touch. Visit our Dispute Resolution page for more information on our services. Alternatively, contact the Disputes Team by calling 01244 354 800 / 0151 321 0000.


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