Inspection of Documents

Paper Documents

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. 

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, 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. 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 be examined by an expert to see whether by analysis of the paper and/or ink and/or signature it can be established whether the document appears to be genuine in the sense of being written by the person it purports to have been written by on the date claimed.  

With regard to paper documents this is still the general approach except that nowadays documents are generally scanned in as PDFs and a copy of the PDF sent to the requesting party rather than a paper copy.  

Since the 1960s, when computers first started to be used, and particularly from the 1980s when personal computers, and later phones and tablets, started to come in to widespread use, many documents are created on electronic devices so inspection of electronic documents, as well as paper documents, may be sought during the Disclosure of Documents stage.


Electronic Documents

If an examination of an original document as stored on an electronic device is desired this can only realistically be carried out by means of a court 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 documents may contain information which is personal or commercially sensitive.      

In an exceptional case where it is alleged that an electronic document is not genuine, examination by an expert 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 - 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 

Ordinarily copies of electronic documents, like paper documents, are provided at the Disclosure of Documents stage in PDF form (with placeholder PDFs for audio/video files) because that is the most convenient form to be used when the trial bundle is eventually produced.

Note: Many cases in the Commercial Court, Construction and Technology Court, and in the Competition List or Financial List of the Chancery Division involve large quantities of documents at the Disclosure of Documents stage and in such cases, in which solicitors are invariably engaged, electronic documents are routinely provided as native copies, rather than as PDFs, PDF copies only being made later for that much smaller subset of documents which will appear in the trial bundle. But in more commonplace cases, where a barrister may be instructed direct without a solicitor, it is usual to supply copies of all documents disclosed in PDF form so that all documents disclosed can be easily included in the trial bundle if required. This is not to say that all documents disclosed should routinely be included in a trial bundle - the trial bundle should only include documents necessary for the trial - but that it should be possible to easily include any document disclosed when the trial bundle is being agreed. Where document copies are provided in PDF form at the Disclosure of Documents stage, any party may, of course ask for a native copy of a document.      

A party may ask for a native copy of a document and does not have to give a reason for asking for a native copy of any electronic document on the other party's disclosure list but some common reasons are:
  • The process of producing a PDF copy 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, 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 is an old (non-digital) photo which you only have in paper/card form, the other side may ask you for a better PDF copy made using different options, but if it is a digital photo it may be easier for them to ask you for a native copy of the JPG file so that they 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 in the top right within the white margin. Again if this is not done the other side could ask 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 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 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. 

For a similar reason it is best, when providing native copies to the other side, not to send copies as email attachments (especially not from an Apple device) but rather to add the photos to an album in Irista and share the album with the other side so that they can view and download. Before sharing the album, go through each photo in it and check that the camera make/model and date/time taken EXIF data is present. 

Because sharing takes place at the album level, it is important to make sure that only the photos to be disclosed are in the album shared.     

Video files should also be loaded to Irista.


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 also rather than in individual files on the device. 

It is possible to make what are essentially native copies of one or more emails but there are various ways of doing this. For example if Outlook is the email client, a PST file can be created to contain selected emails, or if GMail is being used an MBOX file can be created containing selected emails. Because it is relatively unusual for native copies of emails to be requested and because the format they might be requested in may vary - there being no universal standard for email copies extracted from the email database - the best strategy is probably to wait until a request for a native copy is received and at that point discuss what format is required.


Text Messages

Text messages are also stored in a database on the device - not as individual files - but the way in which copies are provided is normally by taking a snapshot JPG picture of the device screen when the texts are being displayed  - it is difficult to provide copies in any other way - so it is suggested that such JPG files, whilst not strictly native copies, should be stored in a folder on your main windows computer because in the event that non-PDF copies are requested snapshort JPGs are the form most likely to be requested.


Other documents 

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


  

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 November 2018. Disclaimer