WhatsApp, Microsoft Teams, Signal, and other instant messaging platforms have become an integral part of most personal and business-related communication. Whether discussing a business transaction, a family dispute, a property matter or a contractual disagreement, important conversations increasingly take place via instant messaging rather than more traditional methods such as emails.
Many of these platforms make use of “disappearing messages”, also known as Ephemeral communications, which automatically delete messages after a specified period of time.
These features are often used for privacy, convenience or to reduce storage capacity needs on devices. A feature which is widely appreciated however such features also become a cause for concern during litigation
The duty to preserve documents
A common misconception is that parties only need to consider preserving documents once court proceedings have started.
In reality, the obligation begins much earlier. As soon as litigation is reasonably contemplated, parties much take reasonable steps to preserve documents that may be relevant to the issues in dispute. This includes electronic messages that may otherwise be deleted automatically or removed through ordinary business processes.
So when is litigation reasonably contemplated? When there is a real possibility that a dispute may lead to legal proceedings. This can be before a claim is formally issued and may arise purely when parties are in a disagreement, threatening legal action or discussing a potential claim.
The importance of understanding preservation obligations
The courts have repeatedly emphasised that parties must understand their preservation duties and act appropriately.
In Veasey v MacDougall [2022] EWHC 864, the court criticised a situation where the parties only possessed screenshots of text messages rather than the original native versions. The court reinforced the importance of preserving original electronic records and safeguarding them throughout the dispute.
Original electronic data often contains important information, known as metadata, such as dates, times, and other technical details. This information may not be visible in a screenshot but can be important when establishing the authenticity of communications. Similarly, in the case of Lloyds Developments Ltd v Accor Hotel Services UK Ltd [2024] EWHC 1238 (TCC), the court criticised the disclosure of WhatsApp messages where metadata has not been preserved and the messages had not been provided in their original format.
What if messages are deleted?
The consequences can be serious. The court have been known to:
- Draw adverse inferences against a party;
- Order additional disclosure exercise at a significant cost; and,
- Apply cost penalties.
In the most serious cases, consider more severe procedural sanctions. An example being Active Media Services Inc v Burmester [2021] EWHC 232 (Comm), where the court drew adverse inferences from the deliberate deletion of relevant emails by the claimant’s witness shortly before trial. The court concluded that the missing material was likely to have been adverse to the claimant’s case and supportive of the defendant’s position, and criticised the claimant’s failure to take adequate steps to recover the deleted documents.
How can Moore Barlow help?
Disputes increasingly involve evidence stored on mobile devices, messaging applications and cloud-based platforms. Understanding what must be preserved, and when, can be critical to protecting your position.
At Moore Barlow we can help identify preservation obligations, advise on disclosure requirements and navigate disputes involving evidence stored on messaging platforms.
Early advice from a business dispute resolution solicitor can often prevent disclosure disputes later and ensure that important evidence is preserved when it matters most.
