Don’t just delete it!

The recent judgment of Huda v. Minister for Health and Social Services [2021] JRC 007 once again highlights the obligation on a party to litigation to preserve all documents that might be relevant to the dispute. The rationale for this requirement is to ensure all documents are available to the Court in order to allow the Court to make a fully informed and fair decision.

Parties are often unaware that this duty commences not when proceedings are issued but much earlier, from the point litigation is reasonably contemplated. This may be when a letter of complaint is received, or when an initial application for personal records is made. Indeed, Practice Direction RC17/07 states:

“3. As soon as a party is aware that litigation is contemplated, that party must immediately take all reasonable steps to ensure that potentially discoverable documents are preserved.

4. As soon as a party retains a legal representative, that legal representative must inform its client of the need to preserve all potentially discoverable documents.

5. The party and its legal advisers in either case shall take all reasonable steps to ensure that no potentially discoverable document is destroyed pursuant to any document retention policy or otherwise in the ordinary course of business.”

The obligation to preserve all ‘potentially discoverable documents’ is very broad and stretches to all documents and records held in both hard and digital form, including digital documents within e-mail accounts, mobile messaging applications and voicemails. The duty to preserve documents includes not only those which may support a party’s claim or defence, but those which may also adversely affect their claim or defence.

In Huda an application for strike out was brought by the Plaintiff on the grounds the Defendant had failed to comply with an unless order for discovery and had destroyed potentially discoverable documents after litigation was contemplated. The parties had agreed to electronic discovery, and potentially relevant e-mail folders were identified, but the Defendant failed to search those folders because they had already been destroyed. The Defendant in Huda had a policy of deleting e-mail accounts of an employee leaving employment after three months, with additional back up files being deleted after twelve months of the employee’s departure.

The Master ultimately did not strike out the Defendant’s Answer in Huda but required the Defendant to undertake further searches and answer additional queries at their own expense. The Master warned the Defendant that should its procedures “not change to comply with the relevant practice direction in future cases the same forbearance may not be shown.”

Many organisations may have policies that include automatically deleting an employee’s e-mails and electronic document files when they leave the company. Many such policies are designed specifically to ensure that companies or organisations comply with their obligations under data protection legislation. There is nothing wrong with having such policies – the problem encountered in Huda is that the policies were applied at a point when litigation was, or ought to have been, in the reasonable contemplation of the Defendant and thus the duty to preserve potentially relevant documents had arisen. The duty to preserve documents in this situation overrides any duty to destroy them under data protection legislation.

The key message from the Judgment is that prior to any deletion of electronic records an organisation should consider, “Could these documents be relevant to any dispute or potential dispute of which we are aware?” If the answer is yes, those documents must be preserved. If in doubt, you should seek legal advice.

BCR Law can offer comprehensive advice regarding document retention policies and often work with organisations to ensure policies comply with all legal requirements.