As a litigator, one of the first pieces of advice that we give to clients who have a dispute and may end up in litigation is to preserve all potentially relevant documents, including those which are harmful to the potential case.
For those cases to which the Disclosure Pilot Scheme (“DPS”) applies (which in a nutshell are most of the cases brought in the Business & Property Court), there is an express obligation on both clients and solicitors in relation to the preservation of documents.
For solicitors, from the moment that we are instructed in a matter that has the potential to lead to proceedings being issued, the DPS obliges us to:
- Take reasonable steps to preserve documents within our control that may be relevant to any issue in the proceedings; and
- To take reasonable steps to advise and assist our client in complying with their disclosure duties. This includes notifying our client of the need to preserve documents and their own disclosure obligations.
For clients, their disclosure obligations mean that they must:
- Preserve all documents, with document being widely defined as “any record of any description containing information.” This therefore includes not just hard copy paper items but also photos, audio files, video, social media posts, messages sent using platforms such as WhatsApp to give but a few examples. It also encompasses metadata (which shows when a document was created and edited and by which person(s)), data held on backup systems and servers and documents which may have been deleted (as such deleted material can often be recovered by IT specialists). This obligation to preserve documents expressly applies to adverse documents as well as ones which support a party’s case.
- Confirm in writing that the following steps have been taken:
- All document deletion/destruction policies have been suspended for the duration of the anticipated proceedings;
- Written notification has been given to all relevant employees and former employees if there is reason to believe that they may have relevant documents, requiring those persons to preserve documents; and
- Take reasonable steps to ensure that any agents or third parties holding relevant documents do not destroy such material
All of the above duties are continuing ones which last until either the proceedings are concluded or it becomes clear that there will not be any proceedings brought. This means that if any further sources of documents come to light, exactly the same obligations to preserve documents will apply.
For cases to which the DPS does not apply, the parties are still under an obligation to preserve relevant documents. The Practice Direction to Part 31 of the Civil Procedure Rules states that “As soon as litigation is contemplated, the parties' legal representatives must notify their clients of the need to preserve disclosable documents. The documents to be preserved include Electronic Documents which would otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business.”
The 'Wagatha Christie' case
There are many jaw-dropping aspects of the judgment of Mrs Justice Steyn DBE in the much reported Rebekah Vardy v Coleen Rooney 'Wagatha Christie' case but the somewhat convenient loss of key documents stands out.
Notably absent from the evidence in that case were a series of media files exchanged between Ms Vardy and her agent, Caroline Watt, via WhatsApp. These missing documents consisted of items such as screenshots, images, videos and voicemail messages exchanged between Ms Vardy and Ms Watt during the time that Ms Vardy had access to Ms Rooney’s private Instagram account. Furthermore, the original WhatsApp messages were also unavailable, with only a media file of such messages that Ms Vardy had sent to her solicitors being disclosed. The problem with this format was that it was not possible to tell whether any further WhatsApp messages were missing.
Unsurprisingly, Ms Rooney’s legal team argued that the loss of these documents was deliberate. Ms Vardy denied that was the case. Her explanations for the absence of the WhatsApp messages and media files were:
- When she tried to upload the WhatsApp messages and the media files on to a platform for her solicitors, Ms Vardy claimed that her computer crashed due to the size of the upload and it was only possible for her to upload the text of the WhatsApp messages and not the media files. When she tried again, she says that she found that the entire WhatsApp chat between herself and Ms Watt was missing. As the Judge noted “[Ms Vardy’s] evidence is not that all her WhatsApp conversations were wiped, only that with Ms Watt and certain other unidentified chats.” Ms Vardy then disposed of the laptop into which the files were said to have been downloaded, claiming it had been “damaged beyond repair”.
- The corresponding WhatsApp conversations (including the media files) on Ms Watt’s phone were also lost. Ms Watt’s witness statement said that “I accidentally dropped my phone while I was on a boat trip…..I was standing up in choppy waters holding my phone and I dropped my phone when the boat hit a wave”. Notably, the timing of the loss of this phone was just after the court had made an order requiring her phone to be inspected for any relevant material. Ms Watt also claimed that she had routinely deleted her WhatsApp messages in 2019 and so it was not possible for those to be retrieved from her replacement phone.
The Judge was having none of it – she found that the reasons given by Ms Vardy and Ms Watt for the unavailability of the original WhatsApp chat to be “improbable” and that that improbability was heightened by the combination of the two improbable accounts that each had given. She found that it was likely that Ms Vardy had deliberately deleted her WhatsApp chat and that Ms Watt deliberately dropped her phone in the sea.
In doing so, Ms Vardy scored an own goal (to use an appropriate analogy given the profession of the husbands of the two litigants). The Court can draw adverse inferences if a wrongdoer has “parted with relevant evidence” and that is exactly what the Judge did. She drew inferences that messages in the deleted WhatsApp thread would have shown that certain of Ms Rooney’s private Instagram posts had been disclosed by Ms Vardy or by Ms Watt to the tabloid press, which in turn would have supported the defence of truth that Ms Rooney ran.
The key point to take from this judgment is that the duty to preserve documents is taken very seriously and any gaps in the evidence that are disclosed will be thoroughly interrogated. We see time and time again that people are a lot more relaxed and unguarded about what they say on social media or by text message or WhatsApp, perhaps mistakenly thinking that such material does not count as a document or that it can easily be deleted.
While some litigants might be tempted to delete or destroy what they consider to be inconvenient items, that is a very high risk strategy as doing so will drive a coach and horses through their credibility as a witness and enable the Court to draw adverse inference from the copious absence of the documents. If there are difficult documents, a far better tactic is to disclose and maintain an element of control by dealing with them head on. For most cases, the document will be one part of a much bigger picture of evidence and perhaps have less overall impact on the outcome in the case in existence rather than in its deletion.
