3. If a relevant document is totally or partially damaged, should this be included in the list of documents?

3. If a relevant document is totally or partially damaged, should this be included in the list of documents? 

Yes, a relevant document that is either totally or partially damaged must be included in the list of documents. The obligation for discovery is broad and requires the disclosure of all relevant documents which a party “has or has had” in his possession, custody, or power. 

The manner in which the party discloses the document depends on the extent of the damage and whether the document (or parts of it) still exists: 

(i) Partially damaged documents 

If a document is partially damaged but the remainder is still in the party’s holding, it must be accounted for in both schedules of the list of documents: 

Schedule 1 

The remainder of the document must be listed here, as it is currently in the party’s possession, custody, or power. 

List the document in Part 1 if the party is willing to produce the remainder for inspection. It should be described sufficiently to enable identification (e.g. “Original Invoice No. 123, partially charred”). 

If the document is protected by privilege (e.g. legal professional privilege), the party must still disclose its existence in Part 2 and provide a sufficient statement of the grounds for that privilege. 

Schedule 2 

Any portions of the original document that have been destroyed, lost, or are otherwise no longer available must be accounted for here. This schedule applies to documents that a party “has had in his possession, custody or control” but no longer does so. 

(ii) Totally destroyed documents 

If a document has been totally destroyed (rendered non-existent or completely unintelligible), it must be listed in Schedule 2. For any entry in Schedule 2, you are legally required to state: 

• When they were last in the party’s possession, custody, or power. 
• What has become of them (e.g., that they were destroyed by fire, water damage, or accidentally shredded). 
• In whose possession they now are, if they still exist in some form with a third party 

No duty to reconstruct 

The party has no legal obligation to generate a new document or carry out a forensic exercise to reconstruct a document that no longer exists. A document created ex post facto to replace a destroyed one is not considered a document that “is or has been” in your possession for discovery purposes.