As Ian Roxborough of Keystone Law notes: "...without emails, notes and records to support a claim, you stand next to no chance of success." As Mr. Roxborough illustrates there have been a number of cases where this has been recognised.
This is not at all surprising, as documents, in which ever form, can provide a view of events and circumstances at the time they were written - often when there was no contemplation of any legal action, and thus can provide an untainted view that is not subject to memory.
In UK & U.S. litigation documents are generally produced through the disclosure/discovery process and it is important that these processes are carried out effectively. This starts with gaining an appreciation of the facts of the case, the people involved and the time-frame over which the case spans. It is then important to perform a data mapping exercise to understand which systems could contain relevant documents for the case. This will not be limited to just emails though, it is important to consider all relevant sources of data including network storage, chat messages and other forms of communication.
One often overlooked source of documents resides in structured data systems - be it accounting systems, sales systems, customer relationship systems or other forms of management information. Often information from these sources are vital to a case and accessing this information becomes on the data, or summaries of it, being communicated via emails - which are disclosed. In can sometimes be advantageous to go back to the source and create a complete set of extracts which can be analysed and summarised in later stages of the case - especially if expert forensic accounting evidence is required.
Whenever dealing with documents, it is also important to manage them in a forensic manner. This helps avoid or refute allegations over the veracity of documents or emails. We have worked on many cases where we have provided expert evidence based on a deep forensic analysis of the documents or emails in question, and having a sound forensic platform to work off of greatly assists the process.
Documents are crucial to the litigation (and arbitration) process, and as Mr. Roxborough says: "...judges...will...base factual findings on inferences drawn from documentary evidence and known or probable facts."
“In the twenty-first century the prevalence of emails, text messages and other forms of electronic communication is such that most agreements or discussions which are of legal significance, even if not embodied in writing, leave some form of electronic footprint.” Without such a footprint, evidence based on recollection of what was said in undocumented conversations which occurred several years ago is problematic because human memory is just unreliable.