Preserving emails and messages as evidence

Emails, messages and attachments can form part of the evidence in a business dispute. Disclosure duties depend on the proceedings; PD57AD includes preservation duties for relevant Business and Property Courts litigation in England and Wales. ^[1]

Preserve complete records before selecting extracts Identify accounts, devices and people likely to hold relevant material. Address automatic deletion, disappearing messages and staff departures promptly with the adviser and appropriate IT support. Preserve attachments and conversation context, not just screenshots of favourable lines.

Keep original files where available and record how copies were collected. Avoid editing originals or attempting to 'tidy' message histories. A separate working copy can be annotated for review.

Control access without suppressing evidence Restrict collection to authorised people and use a secure transfer method. Confidentiality and privilege need assessment; they are not reasons to destroy material. Tell the adviser about missing records and routine deletions that already occurred.

Link important messages to the factual chronology and select copies for a mediation bundle only after preserving the wider set. The bundle is a presentation tool, while the underlying archive supports completeness and authenticity.

Identify where the relevant conversations actually occurred Ask the people involved which systems they used for the transaction. Email may be only part of the record: messaging services, shared folders, project platforms and attachments can contain material explaining a decision. Identify the accounts, devices and custodians likely to hold relevant information, including former staff where appropriate. Record the period and issues concerned so the preservation exercise is directed and understandable. Do not assume that the company's central mailbox contains a complete account simply because some final messages were copied there.

Distinguish the location of information from the authority to access it. A work-related conversation on a privately controlled account may create questions that require legal and technical advice. Do not use another person's credentials or bypass access controls to assemble the file. Tell the adviser what may exist and who controls it. That allows a lawful preservation or collection route to be considered without turning an evidence exercise into an unauthorised search of unrelated private information.

Address routine deletion before selecting favourable extracts Identify automatic deletion, retention limits, disappearing messages and planned device replacement. Explain the relevant dispute to the adviser and authorised IT team so appropriate preservation steps can be considered promptly. PD57AD includes duties concerning preservation in proceedings within its Business and Property Courts scope, with exclusions; it is not a universal disclosure code for every civil case. Check the applicable regime and who needs instructions. Preserve potentially relevant adverse material as well as records supporting the preferred account. [1]

Keep a record of the steps taken and any limitations. If messages were routinely deleted before a concern was recognised, explain what is known about the timing and process. Avoid recreating missing messages from memory and presenting them as originals. A recollection may be recorded separately and identified accurately. Ask whether recoverable copies or other records exist through lawful channels. The objective is to preserve what remains and describe gaps honestly, not to make the archive appear more complete than the evidence supports.

Collect usable copies without changing the underlying record Retain original files and associated information where available, including attachments and conversation context. Screenshots can be useful illustrations, but they may omit dates, recipients, surrounding messages or file properties relevant to interpretation. Ask technical support about an appropriate export or collection method for the platform. Record how the copy was obtained and who carried out the work. Do not edit the source conversation to remove irrelevant-looking material before an adviser has considered what needs preserving.

Use a separate working copy for annotations, translations or chronology references. Make those additions identifiable so a reviewer can distinguish original content from later explanation. Keep names and dates consistent across the working index, but preserve the source even where it contains an error or an unexpected format. If a file cannot be opened, retain it and record the problem rather than deleting it as useless. Its content or properties may still be recoverable through appropriate technical assistance.

Review disclosure and presentation after preservation Have the collected material assessed for relevance, confidentiality, privilege and applicable production requirements. These questions should not be answered by deleting records during collection. Restrict access to the people who need it and transfer material through a suitable method. If an adviser requests additional context, refer back to the preserved set. Keep any decision about withholding or redacting material within the proper legal review process, with a record sufficient to explain what was done where required.

When preparing a chronology or mediation bundle, select copies from the preserved archive and use references that allow the original to be located. Avoid describing the selected bundle as the whole evidential record if it is not. Record later additions and keep the relevant version identifiable. The resulting arrangement should allow someone to understand a quoted message in context and assess its provenance, while maintaining appropriate control over unrelated or protected information. That is more reliable than building the case around a collection of favourable screenshots whose source and completeness cannot be explained.