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Litigation Hold

As soon as litigation is reasonably in contemplation, both parties should be advised that all relevant documents should be preserved. This includes all electronic documents and is extended to documents that have been deleted. Deleted files stay on computers until they are effectively overwritten. Even if adequate back up systems are in place, if the computers are continually used in every day business, those files will eventually be overwritten and therefore lost forever.

By taking a forensic image of the hard drives, this data will be preserved as it was at the time, and, if necessary, deleted files can be retrieved at a later date.

It is often the case that only servers and back up tapes are looked at, but a complete Litigation Hold stretches far further than that.

If a full Litigation Hold has not been put in place the court may strike out part or all of the claim or defence, draw adverse inferences as to what might have been contained in the documents had they not been destroyed, or impose financial sanctions.

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