Preservation of Documents


Preservation of Original Documents

Particularly if the matter could result in litigation (court or tribunal proceedings, 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 potentially relevant original documents. For most stages of litigation, only copies of documents are required, but the original paper documents would normally need to be brought to the trial in case a party, or the judge, wishes to look not just at the copy, which will be in the trial bundle if it is relevant, but also at the original. Also, at the Disclosure of Documents stage of litigation other parties are normally given the right, on reasonable notice, to come and inspect original paper documents.

Legal deeds, such as trust deeds, and conveyances where land is unregistered, are, for good reason, often stored for safe keeping with a bank or they may be held by a mortgage company as security for a loan. If you have relevant documents in safe storage, it is usually best not to remove them from safe storage for copying but to arrange for copies of them to be made whilst they remain in situ. The bank or mortgage company should be able to give you a list of the documents and you could then ask them to scan them and send them to you as PDFs. However it is often better to make a visit so that you can examine the documents yourself and then decide which are relevant and need to be scanned.

You can also scan in the paper documents you have in your possession as PDFs as a precaution in case they should be accidentally damaged though, if you have a large number of documents, that could be time-consuming and initially you might simply scan in those documents which you have actually identified as relevant (and which you will need to scan in anyway in order to obtain legal advice on) rather than scan all the documents which could potentially be relevant. It is important to create a folder on your computer giving it a name of, say, Right of Way Dispute - Copies of Paper Files (if the dispute is about a right of way) and to save the PDFs there with standardised filenames in this format:

Letter Smith to Jones    26 Feb 2020.pdf

As litigation proceeds you might want to make additional copies of potentially relevant documents in another folder on your computer called, say, Right of Way Dispute - Potentially Relevant Documents and perhaps rename some of those documents in that folder with the aim of getting them to appear in an order which helps you to see how they relate to each other and whether and how documents may be relevant to the issues which are actually in dispute in the litigation, as exactly what issues are disputed emerges. But any such renaming should be done on the copies in the Potentially Relevant Documents folder, not on the copies you originally saved on your computer in the Copies of Paper Files folder which should be kept intact. It can happen that documents you initially thought were important come to seem no longer potentially relevant and you might delete them from the Potentially Relevant Documents folder but then some further document or development comes into focus and they seem to be potentially relevant after all. By keeping the PDF scans intact in the original Copies of Paper Files folder you ensure that, in this situation, you can always copy the PDF again and don't have to rescan.     

As well as documents held by organisations for safe keeping, there may be other documents held by organisations which the organisation routinely stores for a set number of years and then destroys (either to save space of perhaps because the organisation is concerned that under data protection legislation they might be keeping personal information longer than they should be). 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 might be relevant might be held by solicitors or other organisations you have used in the past, and then contacting those organsations promptly to ask them for copies of those documents. For example if the matter which has arisen relates to land you own, the solicitors you used for the conveyancing 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 but which could potentially be relevant. So even if you have scrupulously kept everything they sent to you at the time, there may be further documents which you need to obtain copies of before they are routinely destroyed.           


Preservation of Electronic Documents

Documents on a computer, tablet, digital camera, mobile phone, email server, cloud storage etc. are known as “electronic documents” and the same applies to them as to paper documents - i.e. you need to keep the originals. Don't discard the devices - phones, tablets, etc. - which contain photos and other documents. If a device fails, or you replace it for some reason, keep the old device safe. If the authenticity of any electronic document is disputed then the other side might ask the court/tribunal to direct that the actual device on which the document was originally created (e.g. the phone on which a photo was taken) is given to a neutral electronics expert to investigate (which can be done even if the device is broken as the storage components in it may still contain data which can be retrieved with specialist equipment). In practice it is actually quite rare for the authenticity of a document to be disputed: parties may, for example, dispute what a photo shows but to actually dispute that a digital photo is a genuine photo taken on the date it purports to be is rare. But in case there should be a dispute make sure you keep all devices until the end of 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 old emails. If it is, 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 might not be practical if you are a large organisation and in that case other measures will be necessary to ensure data is preserved.

You should be making regular backups of all your data in any event as a precaution against device failure and accidental deletion and such backups will have the added benefit of preserving a copy of all original electronic documents, in their native form, as a further precaution in case anything is accidentally deleted.

The counsel of perfection is to take regular backup copies of the data on all your devices, including phones, but many people just backup their main computer or, at least, are more consistent in backing up their main computer. So I would recommend that, whatever else you do, you create a folder on your main computer giving it a name of, say, Right of Way Dispute - Copies of Files with Original Names (if the dispute is about a right of way) and immediately upload the relevant photos (and videos and any relevant audio files) from your devices to that folder on your computer, take a screenshot of all the text messages you have exchanged with each correspondent (by opening the message display on your phone, taking a screenshot, pressing the scroll capture button to scroll through, and capturing the entire set of messages in a single JPG) and load each screenshot JPG to the folder on your computer as well, as a precaution in case your phone is lost or broken. Whatever copying system you use make sure that metadata is not lostYou can create subfolders in the Copies of Files with Original Names folder for the copied files to record where various groups of documents were copied from and when.

There are various photo management services which will automatically backup photos on your phone but take care with these. Google Photos, for example, not only does not preserve "date modified" metadata but may, depending on the options selected, store photos in a "lossy" compressed form to save space. But if there might be legal proceedings it is important to have a copy of the original files unaltered (“native” copies). So if you are using some automatic system such as Google Photos to make backup copies of the photos on your phone make sure that it is the original JPG files on your phone which you save to the Copies of Files with Original Names folder on your computer, not compressed copies from Google Photos.

It is important that the copies of all types of file which you save in the Copies of Files with Original Names folder on your computer are exactly the same as the originals - don't rename them but keep the original file names. As litigation proceeds you might want to make additional copies of potentially relevant documents in another folder on your computer called, say, Right of Way Dispute - Potentially Relevant Documents and perhaps rename some of those documents in that folder with the aim of getting them to appear in an order which helps you to see how they relate to each other and whether and how documents may be relevant to the issues which are actually in dispute in the litigation, as exactly what issues are disputed emerges. But any such renaming should be done on the copies in the Potentially Relevant Documents folder, not on the copies you originally saved on your computer in the Copies of Files with Original Names folder which should be kept intact with their original names.

Any further potentially relevant documents which you come across (whether documents you already had but could not previous find, or new documents you have obtained by research e.g. in public registers) should also be preserved in the same way - i.e. storing  copies in a new subfolder in Copies of Files with Original Names folder before, as appropriate, making a further copy for the Potentially Relevant Documents folder.  


Keeping track of Documents

You may be at the early stages, considering seeking initial legal advice, but, later on, there may possibly be pre-action correspondence and subsequently litigation, during which you will be sending copies of some documents to other parties and they may be sending copies of documents to you. Some copy documents sent 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 during the litigation process, so, even if litigation may, at the moment, seem a long way off, you should, nevertheless, store  documents already in your possession, and documents you are given by the other side as pre-action correspondence and litigation proceed, separately.


Other Evidence

In addition to documents, there may be physical evidence - often called real evidence. For example in a case concerning damage to property, or goods alleged to be faulty, the property itself is evidence and should be carefully preserved. In some cases in may be impractical to leave property in an unaltered state until any trial but if alterations are to be made - for example if repairs need to be carried out - it is particularly important that photographs are taken before the repair or other alteration is carried out and, if old parts are replaced with new, the old parts should be retained. If an expert, such as an engineer or surveyor is to inspect property and produce a report then, if at all possible, any repair or other alteration should be delayed until after the expert has carried out their inspection.


Websites

Depending on what your dispute is about, the contents of websites may be relevant. 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 (taking a copy at the actual time you ordered would be the ideal but 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 as shown in the example here.


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 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 July 2020. Disclaimer