Document Preservation


Your duty to preserve documents

If there is any risk that your case may become contentious and lead to litigation in court in Jersey, it is very important that you understand your obligation to preserve potentially relevant documents. This is an immediate obligation; it applies as soon as litigation is a real possibility. It applies to electronic material as well as paper documents.

This obligation exists because every party in a civil court dispute in Jersey is required, before the case comes to trial, to disclose to the other parties in the dispute all documents that are relevant to the dispute. This includes documents that help your case and documents that do not help your case. If you do not do this properly, you may not be permitted to pursue your case, and could lose the case without a trial. This process of disclosing information in litigation is called “discovery” in Jersey.
If litigation happens, then an order will be made for discovery to be completed by a deadline. We will then help you to identify the relevant documents, and to list them and disclose them to the other parties.

Your immediate obligations

You must find and preserve relevant documents

You must identify the location of all potentially relevant documents that are in your possession, or to which you have a right of access. You must keep those documents safe. Do not destroy or delete them. You must identify any third parties who may hold relevant documents on your behalf and ensure they do not destroy or delete them.

Do not destroy, delete or dispose of any documents

You will need to explain what has happened to any relevant documents that have been lost or destroyed. A suggestion that potentially important documents may have been lost or destroyed after litigation was anticipated could be very damaging to your case. Businesses or organisations with time-limited document retention policies need to ensure that potentially relevant documents are not destroyed under standard procedures but are retained.

Discovery – general principles

The discovery obligation applies to every document that relates to (in other words, is relevant to) a matter in dispute in the case. A document is relevant if it is one:
a) which you could rely upon to prove your case;
b) which is harmful to your own case;
c) which is harmful to another party’s case;
d) which supports another party’s case; or
e) which might fairly lead any party to make enquiries that could lead to b), c) or d) above.

You have a duty to disclose all relevant documents in your possession, custody or power. This means documents you have under your control, or documents you have a legal right to recover from someone else or somewhere else.

Meaning of “document”

“Document” has a very wide meaning under the court rules. It includes any means of recording information of any description in a manner which can be deciphered. It includes (but is not limited to):

  • Letters
  • E-mails
  • Text messages
  • Drafts of documents
  • Notes, post-its, memoranda and messages
  • Minutes of meetings (at whatever level and whether formal or informal)
  • Contracts and agreements
  • Drawings, images, sketches and plans
  • Diaries
  • Legal and accountancy advice
  • Photographs and electronic images
  • Video and audio recordings
  • Databases
  • Computer discs and other computer storage devices including documents stored on servers and back-up systems)
  • Computer print-outs
  • Metadata
  • Spreadsheets
  • Employee personnel records
  • Cheques, account statements, invoices, receipts
  • Accounts and other financial information

The reasonable search

Your obligation is to conduct a reasonable search for documents. You are not obliged to carry out an exhaustive search, sparing no expense and leaving no stone unturned.
What constitutes a reasonable search will depend on the facts of each case, but there are certain factors the court will apply when assessing the reasonableness of a search. These include:

a) The overriding objective (to deal with cases justly and at proportionate cost);
b) The number of documents involved;
c) The nature and complexity of the proceedings;
d) The ease of retrieval of any particular document;
e) The significance of any document which may be located during the search;
f) The likely expense of carrying out any search.

When determining the extent of the search for documents that is required in each case, the underlying principle is proportionality. Disclosure can be the costliest part of litigation.

We will work with you to conduct the search. You will need to help us identify the people that do or may hold relevant documents, in hardcopy or electronic form (“custodians”). We will then need to identify with you the devices documents may be held on (e.g. laptops, phones etc).

If the case reaches the stage where discovery has to be done, we will advise which documents would be relevant, depending on the issues in the case. The legal team will collate the documents and review the materials to decide which documents must be disclosed.

In cases with a lot of electronic material, the extracting and collating of electronic documents will require the services of specialist e-discovery providers. We have worked with many such providers. They also offer technological assistance with reviewing material, using search terms and other techniques to keep cost down.

We will then draft a list of the documents that are required to be disclosed. The disclosed documents will be described in three lists:

  1. Relevant documents that you currently have, and which the other party/parties may view. Typically, electronically held documents are provided to the other parties electronically in one go, along with the list.
  2. Relevant documents that you currently have, but which the other party/parties cannot inspect: for example, legally privileged documents. Typically these documents are described generally, rather than being individually listed.
  3. Relevant documents that you have had, but no longer have.

We can advise further on discovery as needed. The crucial thing to be clear about from the outset is the duty to preserve all relevant documents, so that discovery can later be done properly if required.