Document destruction

0
1876

LAWYERS HANDLE DOCUMENTS ON A DAILY BASIS. In some cases, the documents are produced by the lawyers themselves and include written agreements and memoranda of advice. In other cases, the documents are provided to the lawyers by clients or third parties for various purposes such as due diligence or safe custody pending the completion of a transaction (for a discussion about the circumstances in which lawyers hold documents in escrow, see China Business Law Journal, volume 7 issue 6: Escrow).

The documents may either be in paper or electronic form. In each case, it is usually possible to destroy the documents by shredding them or deleting them from a law firm’s information technology (IT) system. There are various reasons as to why lawyers and their clients may wish to destroy documents. In the case of documents in paper form, the reason may be to reduce the cost of storage and to create additional storage space for other documents. Alternatively, the reason may simply be that the documents relate to old matters and are no longer useful or relevant.

The issue of storage is less significant in the case of electronic documents. However, lawyers may sometimes be asked to destroy documents. This can occur, for example, where a client or a third party provides the lawyer with confidential information (e.g., for the purpose of bidding, for instructions to act in a deal, or for undertaking a due diligence review) on condition that the lawyer will return the documents or destroy the documents upon the request of the client or third party.

The destruction of documents may be problematic for lawyers and law firms. First, the lawyer may have an obligation to retain documents for a certain period of time, either pursuant to the applicable legal rules or the law firm’s own document retention policy. Second, it may be technically difficult or impossible to delete electronic documents from the law firm’s IT system.

Third, it may be unlawful for a law firm or a client to destroy documents that relate to actual, pending or contemplated judicial proceedings, as such action would result in the destruction of evidence. This article examines the circumstances in which it is unlawful for lawyers or their clients to destroy documents that relate to judicial proceedings, and compares the position in common law jurisdictions with the position in mainland China.

COMMON LAW JURISDICTIONS

Traditionally, the legal rule in many common law jurisdictions was that documents could be destroyed except where judicial proceedings had commenced, or had been announced. Today, however, the general rule established by legislation is that documents must be preserved from the time judicial proceedings are contemplated and not from the time judicial proceedings are commenced.

You must be a subscribersubscribersubscribersubscriber to read this content, please subscribesubscribesubscribesubscribe today.

For group subscribers, please click here to access.
Interested in group subscription? Please contact us.

你需要登录去解锁本文内容。欢迎注册账号。如果想阅读月刊所有文章,欢迎成为我们的订阅会员成为我们的订阅会员

已有集团订阅,可点击此处继续浏览。
如对集团订阅感兴趣,请联络我们

葛安德 Andrew Godwin
葛安德
Andrew Godwin

A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at law.asia.