In addition to pre-action disclosure of documents there is the issue of pre-action preservation of documents and it is sensible to couple the one with the other. Even before a court has to decide whether documents should be disclosed they have to decide whether there should be an order that documents be preserved. This is a far easier matter to decide since the default position is always to require the party to preserve documents. It is like forensic examinations of evidence in criminal cases - the police are required to always "freeze the scene" and preserve the evidence forensically before getting down to the process of determining "who did it". If computer systems are involved preservation involves an aspect of forensic science known as "computer imaging" where byte by byte copies of hard disks and the like are forensically copied.

In recent years the concept of preservation of digital evidence has given rise to a great deal of litigation and there is a growning set of caselaw on "Spoilation of evidence". Under US law spoilation sanctions can amount to hundreds of thousands of dollars in addition to the damages due under the primary claim. It is likely that UK courts will following US practice when spoilation cases are brought to their attention. But spoilation can only effectively be discovered through the use of electronic disclosure procedures.

In law the definition of "documents" has been expanded in recent years to cover not just paper memos etc but also e-mails, SMS messages, instant messaging and everything else that can be recorded in a business. So preservation orders in civil litigation are normally extraordinarily wide in scope covering every form of media recorded.

The decision of the Court of Appeal in  Tchenguiz & Ors v Imerman [2010] EWCA Civ 908 (29 July 2010) (The 'Man from Del Monte' divorce case) strongly suggests that injunctions for the preservation of evidence [Mareva (freezing) orders] and the obtaining of evidence [Anton Piller (search) orders] are to be granted by the court when asked for in reasonable circumstances.

"An important and relevant remedy for a wife, even though it seems to have fallen into desuetude in this area, is the court's power to grant search and seize, freezing, preservation, and other similar orders, to ensure that assets are not wrongly concealed or dissipated, and that evidence is not wrongly destroyed or concealed. Such orders are not infrequently sought, normally without notice, in the Queen's Bench Division and Chancery Division, where a claimant alleges, or has reason to believe, that, for instance, a defendant is seeking to make himself judgment-proof, has misappropriated money or other assets and is intending to conceal or dissipate the proceeds, has obtained confidential information from the claimant which he is intending to use, has articles which infringe the claimant's intellectual property rights, or (particularly germane here) has documents which are relevant to a dispute with the claimant which documents he intends to conceal or destroy. There is no reason why such orders should not be sought or granted in the same way in the Family Division in ancillary relief cases where a wife has evidence that her husband is threatening to conceal or dissipate assets or to conceal or destroy relevant documents."

I would hazard to suggest that any current requirement of suspected malfeasence on the part of a Defendant in cases where there is a claim for an Mareva or an Anton Pillar Order solely so that evidence is not destroyed or lost pending the commencement of litigation will quickly wither away over the next few months and that consequently the courts in 2012 will begin to readily grant preservation orders prior to litigation being commenced.