THE IMPORTANCE OF DOCUMENT PRESERVATION IN INVESTIGATIONS AND LITIGATION: PROCESS, PITFALLS AND PRACTICAL TIPS
Disclosing and producing documents is standard, if not mandatory, in most contentious processes. Generally, the starting point of the disclosure or production journey is comprehensive document preservation. This means making sure that all potentially relevant documents are stored safely, in their original state.
It would be a mistake to think that this topic is simply a matter of good housekeeping. It is a critical stage for any investigation or dispute, and failure to comply as required could result in sanctions and prejudice your case.
In this article, we explain the key steps involved in, and include practical tips for navigating, the document preservation process. We also consider the impact that more than a year’s worth of remote working has had on this issue.
Of course, specific rules will apply depending on the investigation or dispute in question. This article focuses on civil litigation and investigations in England and Wales, but there are certain widespread practices to keep in mind to help protect your position in most contexts.
Act quickly and alert the relevant people
It is important to address document preservation as soon as possible, to avoid losing critical documents and facing potential sanctions. In certain circumstances, it can be a criminal offence to destroy, or permit the destruction of, documents that may be relevant to an investigation – both the Financial Conduct Authority (FCA) and the Serious Fraud Office (SFO) have been known to prosecute such offences.
Jul-Sep 2021 issue
Slaughter and May