Any party to litigation – and this includes construction litigation – has strict obligations to preserve all documents that might be relevant to the dispute. The logic behind this is that, should the matter ever get to Court, then the Court will have all the documents available to make a fully informed and just decision.
This obligation doesn’t start when proceedings are issued; it starts much earlier, from the point when litigation is in the reasonable contemplation of the party. It not only extends to documents that might support the party’s case, but also to documents that might hinder its case, or help or hinder the other side’s case.
Before the advent of electronic communications, document preservation was simply a matter of identifying all relevant documents, putting them into files and storing them somewhere safe.
Now, however, the proliferation of electronic communications means that things are a lot more complicated. The obligation is to preserve relevant “documents”. This is actually a very wide definition, which includes “any records of any description containing information”. This includes electronic documents such as emails, word documents, spreadsheets, photographs, text messages, voicemail messages, Whatsapp messages- the list goes on. All such documents that are relevant to the case must be preserved as soon as litigation is reasonably contemplated.
Many organisations have a policy of not deleting any documents, electronic or otherwise. Instead, they are sent to archive. As long as these are accessible, this is fine. Other organisations, however, have a policy of deleting old documents and emails. A common example is deleting an employee’s emails and electronic document files when they leave the company. Sometimes this happens automatically.
If there is such a deletion policy, it must be reviewed, because it may lead to the destruction of relevant documents. The Court will take a dim view of this and may make adverse inferences from the absence of the documents, which in turn may prejudice a party’s case.
Indeed, it is suggested that, as a matter of course, organisations should ask whether the outgoing employee may have any documents relevant to a dispute, before any deletion takes place. If the answer is yes, those documents must be preserved. They can be saved in a separate folder with the irrelevant documents being deleted, but if this is done, the organisation must keep a careful record of the search terms it has used to identify the relevant and irrelevant documents.
New court rules
Recognising the importance of document preservation, the Business and Property Courts (BPC) (of which the Technology and Construction Court is part), have introduced a compulsory pilot scheme for disclosure, which introduces further steps to help ensure the parties preserve relevant documents. This scheme came into force on 1 January.
A party contemplating litigation must now send a notice (known as a PD51U notice) to all employees, agents and third parties who are likely to be in possession of any relevant documents, reminding them to preserve those documents. Once the notices have been sent out, a senior person within the organisation then has to sign a declaration, confirming that the organisation has taken reasonable steps to preserve documents, and has sent the notices to all relevant employees. This is known as the PD51U declaration.
In addition, when a party issues its claim, it must confirm in writing that it has taken the relevant steps to preserve documents, including issuing the PD51U notices and completing the PD51U declaration.
All organisations should take a look at their document retention policy. The automatic deletion of electronic documents is a particular issue, and should be modified so that the documents can be reviewed for relevance, and then saved, before deletion takes place.
If your organisation is contemplating any type of litigation, it should immediately contact a lawyer to seek advice on what it should do in respect of document preservation. In the meantime, just remember: “DON’T HIT DELETE!”
This blog post was written by senior associate Will Cursham in our Construction team.