It is easy to imagine how litigation could be won, or lost, by proving that a particular document has been altered or by being able to reveal the contents of a long-deleted e-mail. The unavailability of important documentary evidence has long caused the frustrated litigant to dispute the authenticity of a document or to raise the spectre of an allegedly ‘missing’ file.
An increasing proportion of the documentary evidence disclosed in civil proceedings is stored electronically. Apart from a handful of enthusiasts, lawyers and their clients generally lack relevant expertise in the IT field, while IT staff are similarly unversed in the legal or technical issues surrounding civil disclosure. The failure at this intersection of two highly specialist subjects can lead to an inadvertent breach of a client’s disclosure obligations, or maybe, missing the ‘smoking gun’ that would clinch a case and needs to be addressed.
