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The paperless trail -  document management in the digital age

27 November 2012

Thinking about your business, can you answer these simple questions?

  • Do you make use of computers?
  • Do you use email to communicate with your colleagues?
  • Do you know who the emails have been copied on to?
  • Do you know what is on your company server?

Well done if you can answer ‘yes’ to all four questions. But it’s almost a racing certainty that nobody in a given organisation can swear to know everything about inward and outgoing communications unless they are a sole trader who employs nobody. Most organisations are bombarded by electronic messages every day.

What has this got to do with to a litigation lawyer I hear you ask?

The answer is simple. If at some point, your business is involved in a dispute, you may be obliged to disclose any documentation that has been created. In this context, that means ‘anything in which information of any description is recorded’ – in other words, emails, text messages, metadata, memory sticks, CDs, servers, databases and even social media. By law, electronic documents must be properly identified and that is impossible unless you know what documents actually exist.

From this obligation, three ‘must do’s’ arise for businesses:

  • Have a document management/retention/destruction policy and implement it. This will allow better management of all documents created and will enable you explain why some that might have been created are no longer there.
  • The moment a dispute looks likely, you should take care not to create large numbers of internal documents that might not be privileged and therefore might have to be disclosed.
  • Having recognised the potential danger of the explosion in electronic data, created without thinking, make sure you know what type of documents can and will be created during the ordinary course of your business.

As always, if you need commercial and pragmatic legal advice, we’re here to help so please get in touch.

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Nick Cox LLB (Hons)
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