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 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 with a firm of solicitors. 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 solicitors’ firm should be able to give you a list of the documents and you could then ask them to make copies 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 copied.


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 Windows computer or, at least, are more consistent in backing up their main computer. So I would recommend that whatever else you do, you immediately upload the relevant photos and (and videos and any relevant audio files) from your devices to 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 message display in a single JPG, and loading the JPG to your computer, as a precaution in case your phone is lost or broken. Whatever copying system you use make sure that metadata is not lost.

There are various photo management services which will automatically backup photos on your phone but take care before relying on these. Google Photos, for example, by default, stores photos in a compressed form to save space. But if there might be legal proceedings it is important to have a copy of the original file unaltered (a “native” copy). So if you are using some automatic system such as Google Photos make sure that it is the original JPG files on your phone which you load to your computer, not compressed copies from Google Photos.

You can use Microsoft Outlook to save copies of emails. Simply click and drag the emails from Outlook (or Apple Mail on a Mac) into a folder (an ordinary folder outside Outlook) on your main computer. Microsoft Outlook is part of the Office 365 suite so if you have Word and Excel on your computer the chances are you already have Outlook even if you have not yet used it. If you do not have Outlook or Apple Mail but your emails happen to be in Gmail, an alternative is to create a copy of the emails in one or more MBOX files. 


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.


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 July 2019. Disclaimer