Duty to Preserve Documents

Duty to Preserve Documents in Anticipation of Litigation

When litigation is expected, even before any claim is issued, you must take immediate steps to preserve all documents that may be relevant to the dispute. Please note that this includes both documents that support your case and those which are potentially adverse to your case. This duty is strict and begins as soon as litigation is reasonably contemplated.

What counts as a "document"?

  1. A ‘document’ is defined very broadly in the Civil Procedure Rules as anything in which information is recorded.
  2. This includes paper files, emails, text and WhatsApp messages, instant messages, voicemail, photographs, databases, documents on laptops, servers or mobile phones, deleted items, backup data, metadata and interactions with AI platforms.

Your obligations

  1. Stop deletion immediately: Suspend any routine or automatic deletion, destruction or overwriting of information, including retention‑policy deletions.
  2. Notify relevant people: Ensure all relevant employees, former employees, contractors, agents and IT providers are instructed not to delete or modify any potentially relevant documents.
  3. Include third parties: Take reasonable steps to ensure that external parties holding documents on your behalf preserve them.
  4. Preserve deleted or hidden data: Deleted files, email archives, backups and metadata must be preserved if still accessible.
  5. Litigation hold: Issue a formal ‘litigation hold’ notice to all relevant individuals and teams.
  6. Ongoing duty: Preservation continues throughout the case until proceedings finish or the risk of litigation ends.

Why it matters

If you don’t comply with this obligation the consequences can include:

  1. Costs penalties.
  2. Adverse inferences drawn by the court.
  3. Striking out part or all of your case.