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Documentation preservation: a crucial pre-requisite in commercial disputes

25th April 2018

Documentation preservation: a crucial pre-requisite in commercial disputes

When a commercial dispute arises, there will usually be a mad-dash to find out what happened and who is to blame.  Very often determining this will involve going back through a whole host of documents, some of which may be easy to lay your hands on and some of which may not.  Having systems in place which ensure that documentation relevant to a particular project or client is easily identifiable and retrievable is crucial in the bringing or defending of commercial claims.

‘Aside from poor filing practice and the failure to adopt consistent naming conventions, the biggest challenge for businesses looking to locate and retrieve key documents is determining where those documents may be located, particularly where personal as well as business devices have been used and correspondence has been sent via email, text or social media’, says Tim Newsome, dispute resolution solicitor at Myers & Co Solicitors in Stoke-on-Trent, Staffordshire.

‘While there is technology available help search for electronic documents once a dispute has arisen, it is far better to take steps to organise documentation appropriately before a dispute arises’ adds Tim.

By ensuring your paperwork is in order you are more likely to have the evidence available to back up your case, are less likely to miss something important and are also likely to incur less legal fees when a problem arises.’

Disclosure obligations in commercial cases

Whenever a commercial dispute arises that looks destined for the courts, there will be an obligation to disclose relevant documentation.  What counts as a relevant document will depend on the facts, but the default position is that disclosure must be made of:

To comply with your disclosure obligations, you must make a reasonable search for any relevant documents.  Reasonableness in this context will be judged having regard to:

In cases where a significant amount of documentation may have been generated, or where a lot of the documents are likely to be recorded digitally, restricted search parameters may be agreed.  For example, in a dispute concerning a contract entered into on 1 July 2014 it may be agreed that only documents created from 29 June 2014 onwards need to be searched, unless of course there were pre-contract enquiries before this date.  Likewise, for disputes where there is a lot of email correspondence to trawl through, it may be agreed that the search should be limited to emails containing certain key words likely to be relevant.

Wherever possible, you should gather any documents which are likely to need to be disclosed before you attend your first meeting with your lawyer.  This will help them to assess the strength of your case quickly and to identify any potential problem areas.

Organisation of documents

To aid the quick identification and retrieval of documents in future disputes, it is important to adopt a document organisation system in which documents belonging to a particular project or client can be easily identified, and which ideally allow for the grouping of particular document types.  For example, pre-contract correspondence, draft contracts, final contracts, general correspondence, accounts enquiries, complaints etc.

Where personal devices are routinely used for work purposes, steps should be taken to ensure all relevant documentation is transferred to your business systems, either at the time of creation by obliging your employees to work on a cloud-based system which allows shared access, or subsequently by emailing the documentation across and manually uploading it.

Document destruction policies should make it clear that no documentation should be destroyed once a dispute has arisen, even where it is your usual practice to destroy documents after a set period of time.

Technologies available to help

If despite your best efforts to keep your documentation in order, you still cannot be sure that you have located everything that is relevant, there are technologies available to help – at least when it comes to electronic communication.  These range from basic systems that will search for particular key words or within certain date ranges, to more sophisticated systems which can search by reference to a concept or for documents which appear to have similar content.

In all cases where a search of electronic documentation needs to be carried out, it is important to involve your IT provider at any early stage.  You may also need to involve external IT specialists where particularly extensive searches are required.  It is also imperative that you have a commercial dispute resolution lawyer on board who is fully familiar with the courts disclosure requirements.

For further advise, please contact Tim Newsome on 01782 525011 or email tim.newsome@myerssolicitors.co.uk.

The contents of this article are for the purposes of general awareness only.  They do not purport to constitute legal or professional advice.  The law may have changed since this article was published.   Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.