Inspection of Documents


The history of inspection of paper documents in legal proceedings

Before the invention of the photocopier

Before the invention of the photocopier the Disclosure of Documents stage of litigation (or discovery as it was then called) involved one party to litigation visiting, by appointment, the place where the other party kept paper documents (or their solicitor's office where their documents would be held if they had appointed solicitors) and inspecting the documents relevant to the case a list of which would previously have been supplied. The visiting party could make a manuscript copy of selected documents or could ask the other party's solicitors to make and provide a copy. 

After the invention of the photocopier in the 20th Century

Making a manuscript copy of a document was expensive so a party would inspect all the documents and make a decision as to when ones would be copied. With the invention of the photocopier in the 20th Century, however, it became more cost-effective not to physically inspect the original documents but to simply request copies of all documents on the disclosure list provided by the other party - apart from documents which the requesting party was sure they already had copies of such as correspondence between the parties. 

With the availability of photocopying, a physical inspection therefore became the exception rather than the rule, reserved for those cases where it was really required such as where a document was very faint and the inspecting party wished to establish whether anything more could be seen by looking at the original, or where they wished to examine the original to try to establish whether it was a 'wet ink' original original or a copy.

In exceptional cases a party might, after themselves examining a document, ask the court for a direction that the document should be examined by an expert to see whether by analysis of the paper and/or ink and/or signature it could be established whether the document appeared to be genuine in the sense of having been written by the person it purported to have been written by on the date claimed.  


Inspection of Paper Documents in the 21st Century

The general practice now continues to be that of only carrying out a physical inspection of paper documents  in exceptional circumstances and usually relying on the other side providing copies which, of course, nowadays, will be PDF copies rather than paper copies.  


Inspection of Electronic Documents

Since the 1960s, when computers first started to be used, and particularly from the 1980s when personal computers, and later mobile phones and tablets, started to come in to widespread use, many documents are actually created as electronic documents - i.e. in addition to PDFs created on a device by scanning in paper documents, many documents on a device, such as digital photos and emails, will actually have been created originally in electronic form without any paper being involved - and inspection of these electronic documents, as well as paper documents, may be sought during the Disclosure of Documents stage.

If an examination of an actual original electronic document, on the electronic device it was created on, is desired this can only realistically be carried out by means of a court/tribunal direction for an expert to examine the device. Just as no party would want to hand over an original paper document to the other side, no party would want to hand over an electronic device particularly as any device is likely to contain a large number of electronic documents most of which will not be relevant to the case and some of those irrelevant electronic documents may contain information which is personal or commercially sensitive.      

In an exceptional case where it is alleged that a particular electronic document is not genuine, examination of the original electronic document actually on the electronic device may be directed but in ordinary cases a much less expensive way of inspecting electronic documents is to ask for a native copy. A native copy is a copy which is identical to the original electronic document - same document type, same data, same file name. So, for example, a native copy of a digital photo named 20181121_153645.jpg will also be named 20181121_153645.jpg A native copy of a PDF named 2019reviewreport.pdf will also be named 2019reviewreport.pdf

Ordinarily copies of electronic documents are provided (as are copies of paper documents) at the Disclosure of Documents stage in PDF form (with placeholder PDFs for audio/video files) with the PDF copy being given a descriptive filename, because that is the most convenient form to be used when the trial bundle is eventually produced, but a party may, in addition, ask for a native copy of a disclosed document. A party does not have to give a reason for asking for a native copy of any disclosed electronic document but some common reasons why native copies may be requested are:
  • The process of producing a PDF copy of a non-PDF electronic document can sometimes involve choosing different options. For example, when making a PDF copy of a photo which has an area which is dark, you might have chosen an option to adjust the brightness so that that area is easier to see in the PDF copy, but that might have resulted in another area of the PDF copy of the photo (which perhaps the other side is particularly interested in) being too bright and therefore unclear for that reason. If the photo were an old (non-digital) photo in paper/card form, the other side might have asked for a better PDF copy made using different options, but if the photo is a digital photo it may be easier for the other side to ask you to provide a native copy of the JPG file so that the other side can make their own PDF copy with whatever brightness adjustment they choose and/or look at it on a computer screen.
  • It is good practice when making a PDF copy of a digital photo to choose options which mean that the photo size is adjusted (leaving the aspect ratio unchanged) so as to be slightly smaller than A4 size leaving a good white margin (particularly at the top and bottom of the PDF page) and for the camera model and date/time taken details in the EXIF data in the JPG file to be included in the PDF copy in the top right within the white margin. If this is not done the other side could ask you for a further PDF copy including this information but they may prefer to simply ask for a native copy of the JPG file so that they can see all the EXIF data in the JPG for themselves.  

It is good practice to be prepared for a request for a native copy of a document by (whatever else is done to preserve documents) creating native copies, at least of the document types for which native copies are most likely to be requested, in an easily accessible location, and the following is suggested.



Digital photos

Load JPG digital photos (and videos) from the device (e.g. phone) they were taken on direct to Canon Irista. It is generally best to upload digital photos to Irista direct from the device they are on (e.g. by installing the Irista app on the device) rather than by attempting to copy the JPG files to another device before uploading to Irista because copying can, depending how it is done, sometimes result in the EXIF data being missed off the copy. Apple devices, in particular, are prone to lose EXIF data when copying. It is good practice to load to Irista all photos which could possibly be relevant as soon as there is any possibility at all that there might be litigation (as a precaution in case the device they are on is lost or broken) but not all photos will subsequently be disclosed in the proceedings (some may turn out not to be needed because some issue they are evidence of turns out not to be disputed). The fact that Irista contains more photos than you are disclosing is not a problem because within Irista you can add a subset of photos to an album and share just that album with the other side so that they can view and download the digital images in just that album. You can have a number of albums and a photo can be added to more than one album so you can have one album dedicated to providing native copies of digital photos to the other side - which you might be doing in stages if, for example, court/tribunal procedures require disclosure in stages - and use another album to share further photos with a barrister for advice about, for example, whether or not you should waive privilege in a particular set of photos and proceed to disclose them in the next stage of disclosure so that they can be used at trial.    

Sharing an Irista album is also generally a more reliable way of providing native copies of photos to the other side than sending copies as email attachments because some email systems (particularly those on Apple devices) strip off EXIF data. Before sharing an album with the other side, go through each photo in it and check that the camera make/model and date/time taken EXIF data is present. Also check that the photos in the album are all photos PDF copies of which have already been loaded to the My Documentary Evidence DCS case so that the My Documentary Evidence case always contains a compete set of documents which have been (or are to be) disclosed.   



Audio and Video Files

Audio and video files cannot, of course, be provided in PDF form (you can make a transcript of an audio file or of a video file but that is a separate matter). So for audio and video files which are to be disclosed you will be providing native copies as a matter of course (rather than, as for other document types, providing PDF copies initially and providing native copies on request). 

To do this you first load audio and video files (e.g. mp3 and mp4 files) from the device (e.g. phone) they were recorded on direct to cloud storage such as MEGA and then create placeholder PDFs containing a clickable link to the file on MEGA. Those placeholder PDFs are then provided to the other side at the Disclosure of Documents stage along with all the other PDFs disclosed. 

It is good practice to load to MEGA all audio and video files which could possibly be relevant as soon as there is any possibility at all that there might be litigation (as a precaution in case the device they are on is lost or broken) even though some video/audio files may not subsequently be disclosed in the proceedings (some may turn out not to be needed because some issue they are evidence of turns out not to be disputed). The fact that MEGA contains more video/audio files than you may be disclosing is not a problem because within MEGA you can obtain links to individual files and provide placeholder PDFs to the other side just for those files to be disclosed. 

Providing the other side with placeholder PDFs containing links to mp3 and mp4 files on MEGA is generally a better way of providing video/audio files to the other side than sending the mp3 and mp4 files as email attachments because video/audio files are often large. 



Text Messages

Text messages are generally stored in a database on the phone - not as individual files - so that it is not easy to make copies. However it is suggested that you initially take a screenshot of all the messages you have exchanged with each correspondent by opening the message display, taking a screenshot pressing the scroll capture button to scroll through, and capture, the entire message display in a single JPG and loading the JPG to Irista as a precaution in case your phone is lost or broken.


Emails 

Unlike digital photos, and many other documents, emails are typically not stored on a device as individual files. Rather they are stored in a database file on the email server and even if copies, or partial copies, of emails are also stored on one or more devices that will typically be in a database file internal to the email app rather than in individual files on the device. 

It is good practice to make MSG or EML copies of all emails which might be relevant as soon as there is any possibility at all that there might be litigation (as a precaution in case the device they are on is lost or broken and or any emails are automatically deleted by the email system after a certain age).


Other documents 

It is suggested that native copies of other electronic document types should be stored in a folder on your main Windows computer ready to be provided if requested.

Note: In the great majority of cases which are suitable for engaging a barrister direct without a solicitor, there will not be a huge number of documents and so it is usual to supply copies of all disclosed documents to the other side from the outset in PDF form and to load the PDFs into the DCS system so that any document disclosed can be easily included in the trial bundle if required. The above explanation is based on that approach - i.e. all disclosed documents are provided in PDF form and native copies are provided only when the other side specifically asks for a native copy of a particular document or set of documents. Some cases, particularly many of those heard in the Commercial Court, Construction and Technology Court, or in the Competition List or Financial List of the Chancery Division of the High Court involve large quantities of documents at the Disclosure of Documents stage and in such cases electronic documents are routinely provided as native copies, rather than as PDFs, with PDF copies only being made later for that much smaller (but often still very substantial) subset of documents which will appear in the trial bundle. But in such cases solicitors are invariably engaged to manage disclosure of documents.      
  

Disclaimer

This information page is designed to be used only by clients of John Antell who have entered into, or are about to enter into, an agreement for the provision of legal services. The information in it is necessarily of a general nature and is intended to be used only in conjunction with specific advice to the individual client about the individual case. This information page should not be used by, or relied on, by anyone else.

The information on this page about specific computer techniques is provided for information purposes only. Every reasonable effort has been made to ensure that the information is accurate and up to date at the time it was written but no responsibility for its accuracy, or for any consequences of relying on it, is assumed by me. You should satisfy yourself, before using any of the techniques, software or services described, that the techniques are appropriate for your purposes and that the software or service is reliable.


This page was lasted updated in June 2019. Disclaimer