Preservation of Documents

Preservation of original documents

Particularly if the matter could result in litigation (proceedings in a civil court or other civil tribunal) or an application to the Land Registry which may or may not end up being referred to a tribunal) you should take care to preserve all original paper (or card) documents which might possibly be relevant. During litigation relevant papers are scanned in as PDFs and, for most stages of litigation, only PDF copies are used, but the originals of those documents included in the eBundle used at the final hearing (trial) would normally need to be brought to the hearing in case the judge wishes to look not just at a PDF copy in the eBundle but at the paper original. Also, depending on the rules and practice of the particular tribunal, there will typically be a Disclosure of Documents process under which each party has an opportunity - whether at the final hearing or before - to physically inspect originals of disclosed documents. 

By "original paper documents" what is meant is what you have originally in your possession - before you make any copies needed for the legal process or for the purpose of obtaining legal advice. So "original paper documents" might include some "original originals" such as a conveyance where you have the actual "wet ink" signed original but it also includes "original copies" - for example when you purchased your property you may have been given a photocopy of an old conveyance but you have never had the "wet ink" original, in which case that photocopy which you were given is the "original paper document" in your possession.

Documents on a computer, tablet, digital camera SDcard, mobile phone, USB stick, email server, cloud storage etc. are known as “electronic documents” and, as with paper documents, you need to keep the originals. Don't discard the devices which contain photos and other documents. If a device fails, or you buy a replacement for some reason, keep the old device safe. For most purposes in litigation copies of electronic documents are used but If the authenticity of any electronic document is disputed then the other side might ask the tribunal to direct that the actual device on which the document was originally created (e.g. the phone or digital camera SDcard on which a photo was taken) is handed over to a neutral computer expert to investigate (which can be done even if the device is no longer functional as it may still be possible to retrieve, with specialist equipment, data from components inside the device). In practice it is actually quite rare for the authenticity of a document to be disputed: parties may, for example, dispute whether what an email says is true, or what a photo really shows, but to actually dispute that, for example, an email is a genuine email sent on the date it purports to have been, is rare. But in case there should be a dispute you should  keep all devices until the end of any litigation.

It is also important to make sure that original electronic documents are not accidentally deleted. If you are a private individual check that your email system is not set up to automatically delete emails over a certain age. If it is, you could turn that option off. Turning off automatic deletion of old emails might mean that you have to increase your email storage size, but any additional charge for that would probably be minimal. That approach might not be practical if you are a large organisation and in that case other measures will be necessary to ensure data is preserved.

The routine backups which you have made in the past may be relevant as showing, for example, what the contents of any website you might have were at a particular time in the past. If the dispute you have is, for example, with a customer who has ordered goods or services from you online, the details which were displayed on your website at the time of the order may well be relevant. The contents of webpages generally are liable to change over time even if the particular webpages on your own site have not in fact been changed since the date when the customer used it to order. So the best evidence of what particular webpages on your website contained at the relevant date would be likely to be the last routine backup of the website which you took  before the date in question and the first routine backup which you took after the date in question. So it is important to make sure that routine backups are preserved and not lost by reason of backup media being recycled.  

As well as documents you have in your possession there may be other possibly relevant documents held by organisations which the organisation routinely stores for a set number of years and then destroys (to save space - in the case of paper documents - and perhaps also - in the case of both paper documents and computer files - because the organisation is concerned not to keep documents containing personal information longer than they should under data protection legislation). For example, solicitors often keep client files for a set number of years and then destroy them. So as soon as any matter arises which could result in litigation it is worth thinking about whether documents, which could possibly be relevant, might be held by solicitors or other organisations you have used in the past, and then contacting those organisations promptly. For example if the matter which has arisen relates to land you own, the solicitors you used for the conveyancing when you bought that land will have kept a file containing not only a copy of everything the solicitors sent you at the time but also copies of correspondence between your solicitors and the seller's solicitors much of which you will not have been sent at the time (because it concerns details which the solicitors were dealing with for you) but which could possibly be relevant. So even if you have scrupulously kept everything your conveyancing solicitors sent  you at the time, there will be further documents. You can ask them to make sure they preserve the originals  and, in addition, you can ask them how much (if anything) they would charge to send you PDF copies of paper documents, and copies in some convenient format for any electronic documents they hold. The same applies if you have a mortgage and the mortgage company is keeping title deeds as security.

Depending on the particular litigation procedure and the rules of the particular tribunal concerned, your opponent will at some stage come under a  legal obligation to preserve relevant documents they possess but, to be on the safe side, if the contents of your opponent's website are relevant you can yourself take copies at the earliest opportunity. For example if you have a dispute with a supplier from whom you have ordered goods or services online you might want to take a copy of the details displayed on their website. As the contents of webpages are liable to change over time, taking a copy just before and just after you  ordered would have been the ideal but, if you didn't do that, taking a copy as soon as you think of it may have at least some value. You can use the Print function of the Chrome browser on a Windows computer to make a PDF copy of a webpage as shown in the example here

When a dispute arises which could potentially end up with litigation, initially you won't know for sure the precise form that any eventual litigation might take. It might be that in the end only part of what now seems to be disputed remains in dispute, and only that part is subject to eventual litigation. Conversely it might be that the dispute is widened so that some additional matter not currently disputed but generally associated with matters disputed, ends up also being part of the legal dispute as well. Because the exact parameters of any eventual legal dispute cannot be precisely predicted at the outset, it is important, for the purposes of ensuring that relevant original documents are preserved, to take steps to preserve everything which could possibly be relevant.

As well as taking steps to guard against any possibly relevant documents being accidentally deleted or lost it is a good idea to make copies on your main computer of documents which may be at particular risk such as paper documents and electronic documents on mobile devices. Taking copies is not a substitute for taking care of originals but is an extra precaution. At some stage in litigation it might be necessary for original electronic devices to be examined by an judge-appointed independent expert. And the judge might wish to examine some particular original paper document.

Making initial copies of documents to your main computer

You will need to scan in some paper (or card) documents in order to obtain initial legal advice about a matter so you will be creating PDF copies of some paper documents anyway. The counsel of perfection is to scan, at the outset, all paper documents which could possibly be relevant but whether that is practical, or whether it is sensible to wait until later on when exactly which documents are relevant becomes clearer,  may depend on how many paper documents there are and how easy they are to scan. 

In the case of electronic documents there is less of a dilemma because it is generally easier to take copies. You should be making regular backups of all your data in any event (e.g. to a portable hard drive) as a general good-IT-practice precaution against device failure or accidental deletion and such backups will preserve a copy of original electronic documents, in their native form including  metadata, as they were at the time of the backup. The counsel of perfection is to take regular backup copies, to keep for a number of years, of the data on all your devices, including mobile devices such as your phone, but some people just backup their main computer or, at least, are more consistent in backing up their main computer. So it is a good idea, whatever else you do, to create copies in a folder on your main computer of all electronic documents on all your other devices which could possibly be relevant so that they will be included in backups taken on your main computer.

Create a high-level folder on your main computer to contain all the copies. You could name the folder e.g., depending what the dispute is about, Right of Way Dispute documents. Within that high-level folder create the following sub-folders

PDF Copies of Paper Documents

Copies of Files

Screenshots of Messages

PDF Copies of Webpages

Copies of Files from External Organisations


Paper documents you have

Create sub-sub-folders, within the PDF Copies of Paper Documents subfolder, with names which indicate where the documents each sub-sub-folder contains came from. For example you could create sub-folders named Correspondence with Mr Jones and Photos from 1973 album within the PDF Copies of Paper Documents subfolder. Then scan in possibly relevant paper documents named like this:

Letter Smith to Jones    26 Sep 2020.pdf

Photo No 22 Wall   19 Sep 1973.pdf

and save them in the appropriate sub-sub-folder.

Electronic documents you have on phones and other mobile devices

You need to create ZIP or RAR archive files containing all possibly relevant photos (and any possibly relevant video, audio or other files) on your phone and on any other mobile devices. ZIP and RAR format were originally designed to save space at a time when storage devices were more expensive than they are now, and the bandwidth of internet connections was less, but the main reason for creating ZIP or RAR archive files now is so that the copies of files within each ZIP or RAR archive have file-system metadata which is, as far as possible, unchanged ("date/time last accessed" may by changed by the ZIP operation but not "date/time last modified"). Indeed, unlike most PDFs containing text, JPG files containing photo images cannot be reduced in size without loss of data because they do not contain, except by accident, any repeating patterns of pixels)  

Most phones and tablets have a pre-installed app which can create ZIP archive files but you may find that the pre-installed app does not allow you to go through the JPGs efficiently - viewing them and ticking  those which are possibly relevant and finally archiving those selected. The app may untick your selection as soon as you view the next JPG. So you will probably find it easier to install the RAR app on each device and use that. In the case of any SDCards, insert them in any convenient device which has the RAR app installed in order to create a ZIP or RAR archive.

When using the RAR app tick Create separate archives and tick Archive name mask and use a mask which identifies the device such as +{Galaxy S23 - }  Make sure that the device identification you type in is unique. For example if you have a Galaxy S23 device with photos on it and a family member or employee also has a Galaxy S23 device with potentially relevant photos that you need to preserve as well, use the owner's initials to identify the specific device - e.g. +{JJS Galaxy S23 - }  This name mask will create archive files named e.g. JJS Galaxy S23 - 20231230_121639.jpg.zip 

Note: never rename the JPG files themselves because it might be necessary at some point to check original filenames - just name the archive files which contain the JPG files. Later on you may wish to organise copies of files in chronological order with descriptive names to study more closely how they relate to each other but to do that you should load the files to a document management system so that it is only copies within the document management system (such as Bundledocs) which are given descriptive names, and original files remain with the filenames they have.  

When you have created the archive files on the mobile device, copy them to your computer (using a USB cable or, if necessary, by email) and save them in the Copies of Files sub-folder. 

You may find that although you have a large number of photos in a folder on a mobile device (so that it would be time-consuming to review them all to see which are possibly relevant) the total storage used is relatively small compared to the available storage on your main computer in which case it may be simpler to initially create archives of all the files in that folder rather than review each photo to see whether it is possibly relevant.

Note that there are various photo management services which can automatically backup photos from a phone to cloud storage but (perhaps because lossless compression of JPGs is not possible) they may, depending on the options selected, store the JPG data in the cloud in a "lossy" compressed form  (by removing pixels) and not preserve file-system nor embedded metadata in the copies in the cloud. If you have such "lossy" compressed backup copies already, do not rely on them but create RAR or ZIP archive files direct from the JPGs on the original device. 

Instant Messages 

Instant Messages are not normally stored on a phone or other device as separate ordinary files which can readily be copied so, instead, you should take a screenshot of all the messages you have exchanged with each possibly relevant correspondent (by opening the instant message app display on your device, turning the phone to the horizontal position, taking a screenshot, pressing the scroll capture button to scroll through, and capturing the entire set of messages with that correspondent in a single image file). Then create a ZIP or RAR archive file containing those screenshots (one archive file per correspondent named e.g. Instant Messages to and from John Smith) and save that archive file in the Screenshots of Messages sub-folder. Note that if a text message is quite long, the messaging app might initially just display the first 20 lines, for example, followed by ...Read More. In this case, of course, you need to tap on "Read more" so that the entire message is displayed before doing a screenshot.

Webpages

Depending on what your dispute is about, the contents of websites might be relevant. For example if you have a dispute with a customer who has ordered goods or services from you online you might want to take a copy of the details displayed on your website. The contents of webpages generally are liable to change over time even if the particular webpages on your own site have not in fact been changed since the date when the customer used it to order. So the best evidence of what particular webpages on your website contained at the relevant date would be likely to be the last routine backup which you took  before the date in question and the first routine backup which you took after the date in question. It is important to make sure that routine backups are preserved and not lost by reason of backup media being recycled and, as an additional precaution you could make copies of the webpage images from within the backups. Particularly if for some reason you do not have historical website images captured on backups, taking a copy of the webpages as they now are would also be a good thing to do.  You can use the Print function of the Chrome browser on a Windows computer to make a PDF copy of a webpage as shown in the example here. Create a ZIP or RAR archive file containing the copies (current and, if possible, historical) of webpages (one archive file per website named e.g. Copies of Relevant pages from the Jones and Co Website.zip) and save that archive file in the PDF Copies of Webpages sub-folder.

Documents which external organisations have

The external organisation should be able to give you a list of the paper documents they hold and you could then ask them to scan them and send them to you as PDFs. External organisations may also have documents in electronic form which you can ask for copies of also. Create a ZIP or RAR archives each containing all the documents received from a particular organisation on any particular occasion, prefixing the archive filename e.g. Conveyancing File obtained from solicitors June 2020 or Documents held by bank - copies obtained July 2020 and save the archive files in the Copies of Files from External Organisations subfolder.

N.B.(1) The PDF Copies of Paper Documents sub-folder is only for those documents which you have in paper form in your possession. Electronic copies of documents which you have just obtained from external organisations should be stored in the Copies of Files from External Organisations subfolder even if the originals held by the external organisation are in paper form . 

N.B.(2) Copies of documents sent to you by an opponent as part of the process of litigation (including in pre-action correspondence) should NOT be stored in the Copies of Files from External Organisations subfolder - see below.

Keep documents disclosed by your opponent separate

During the litigation process (including at the initial "letter before action" stage) your opponent or potential opponent may send you ("disclose to you") copies of documents they have. Some copy documents disclosed to you during litigation may be the same as ones you already have, some may be new to you, and some may be similar to ones you already have but contain small differences, perhaps differences that you do not immediately notice – for example a letter with a hand-written annotation where the copy of the letter you originally received does not have the annotation. It is important not to lose track of what documents you originally had, and what documents you have later received by disclosure during the litigation process, so create a separate high level folder (named e.g. Right of Way Dispute - documents disclosed by other side)  to store disclosed copy documents in


Disclaimer

This information page is designed to be used only by clients of John Antell who have entered into an agreement for the provision of legal services. The information in it is necessarily of a general nature and will not be applicable to every case: it is intended to be used only in conjunction with more 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 January 2024. Disclaimer