The unrequited love between data disposal policies and parties’ disclosure obligations

Many will have been unable to avoid noticing that Valentine’s Day was earlier this week.

When I think of the phrase unrequited love, it immediately takes me back to English lessons analysing the relationship of Catherine and Heathcliff in Emily Brontë’s Wuthering Heights.

However, there is an ever more prevalent unrequited love in the relationship between document retention /disposal policies and the court’s disclosure obligations placed on parties.

Many businesses will be familiar with or already have document retention and/or disposal policies in place setting out internal guidelines to regulate how documents should be handled and how long they should be kept.

Following the Covid-19 pandemic, businesses are continuing to work either wholly or partly remote and in turn are churning out more electronic documents than ever before.

Earlier this week the Law Gazette shared an article exploring how the large volumes of data now in existence are making disclosure processes even more difficult to manage.

With more electronic documents being generated and more staff working remotely, there has become an ever-growing concern for businesses to ensure that they have adequate data retention and disposal policies in place to comply with GDPR requirements as well as protecting themselves from any potential data breaches or cyber security risks. This lends itself to a practice of deleting documents as soon as they are no longer required to limit the risk of committing GDPR or data breaches or fall victim of a cyber security breach.

However, the disclosure obligations placed on parties by the courts to preserve documents do not “love” these data disposal practices.

As part of the disclosure process, when faced with the prospect of any potential dispute that may result in a court claim, the Court requires parties to comply with strict document preservation requirements, and these obligations set in before a claim form even hits your desk.

The obligation placed on parties is that any potential party to litigation owes a duty to the court to take mandatory steps and ensure that any potentially relevant documents are preserved.

The failure to comply with these obligations can result in sanctions, including costs penalties on the failing party.

The definition of “document” for disclosure purposes is considered widely by the courts. A “document” is anything that holds information that is relevant to the issues in the proceedings. This can include anything from emails, texts, WhatsApp messages, various other social media or chat functions and documents stored or created in word, pdf or PowerPoints to excel spreadsheets.

And it is now more important than ever for parties to preserve documents early on in any dispute.

From 1 October 2022, the previous disclosure pilot scheme PD 51U which required initial disclosure of parties at the very early stages of a case was formally adopted under PD 57AD for cases that are issued in the Business and Property courts and is here to stay.

Companies will therefore need to remain vigilant and ensure that when faced with any potential dispute, they not only do not destroy documents potentially relevant to the dispute but are expected to take active steps to ensure that documents that may otherwise be deleted in the usual course of business or in accordance with a document disposal policy are preserved to avoid falling foul of the court’s rules.

Seek advice from IBB and we can discuss your options with you.

If you would like advice on how to make sure you or your business can comply with your disclosure obligations before you are faced with any dispute or you are already faced with a dispute or may have a potential dispute and would like advice on how to navigate the disclosure process or the claim, our Dispute Resolution Team at IBB would be happy to advise you.

Speak to one of our specialist lawyers on 0330 175 7621 or email commercialdisputes@ibblaw.co.uk.