Guide
The Missing Evidence Problem
17 pages · 22 min read
This guide, 'The Missing Evidence Problem', addresses the challenges faced by UK lawyers, in-house counsel, and investigators when evidence is absent.
- Custodians and data mapping
§ Guide
The Missing Evidence Problem
This guide, 'The Missing Evidence Problem', addresses the challenges faced by UK lawyers, in-house counsel, and investigators when evidence is absent.
Ref · E-D · 2026 · §LIBClass · ConfidentialJuris · England & WalesStatus · Active
Guide · 17 pages · 22 min read · Published 2026-08-30
This guide, 'The Missing Evidence Problem', addresses the challenges faced by UK lawyers, in-house counsel, and investigators when evidence is absent. It covers how to prove what should exist, find where it went, and litigate the gap. The guide details investigating missing evidence in three moves: proving it existed, explaining its absence, and pursuing it where it still survives. It distinguishes routine loss from destruction, maps where missing material survives, and outlines the legal framework for preservation duties and their breach. Practical sections include litigating the gap, source architecture, worked examples, common mistakes, technical limitations, and questions to ask. It also provides a checklist, red flags, and guidance on when to involve a digital forensic expert. This resource is essential for anyone dealing with the absence of expected evidence in UK legal contexts.
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§ Credit and source
Published by Computer Forensics Lab on 2026-08-30. Original material of the practice, free to read, cite and download. See every guide's author and source.
§ Full text of The Missing Evidence Problem
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The Missing Evidence Problem
MISSINGEVIDENCE · A GUIDE FOR UK LAWYERS The Missing Evidence Problem Proving What Should Exist, Finding Where It Went, and Litigating the Gap COMPUTER FORENSICS LAB
§ Common questions
Frequently asked questions
- The other side says the documents were deleted under a retention policy. Is that the end of it?
- Only if the policy story survives testing: the policy's terms and dates, its execution logs, the duty clock (§6) and the selectivity check (§4) either corroborate the account or contradict it: Example 3 shows the version that holds, Example 1 the version that does not. Ask for the records with §11's request; policies that ran as claimed can always produce them.
- Can deleted material really be recovered, or is that television?
- Both, honestly: recycle stores, versions, backups, duplicates and counterparts recover a great deal inside their windows (Examples 1-2), while properly wiped media and expired cloud stores are genuinely gone: §5's map with
- How do we prove something existed if it no longer does?
- From the estate's redundancy: quoting replies and thread structures, file-system and sync bookkeeping, counterpart copies, platform counters, and volume analysis (§3): traces that outline the item precisely enough to litigate. Counterpart copies are the gold standard: the deleted email's recipient rarely deleted it too.
- When does the duty to preserve actually start?
- On contemplation of proceedings, not service: PD 57AD's duty (with its hold-notice and suspension obligations) is engaged when litigation is reasonably in prospect, and the certificate later signs for compliance: which is why the contemplation date is investigated, not conceded, in every gap dispute. Material expiring before that date is retention; after it, the questions begin.
- Will a court really draw an adverse inference?
- On a proven record, yes: destruction evidenced, timed against the duty, with recovery exhausted: the inference calibrated to what the file shows: and on suspicion alone, no: §7's whole architecture exists because courts punish demonstrated conduct, not gaps as such. Build Example 1's schedule; skip Example 1's indignation.
- We have discovered our own client's gap. What now?
- Investigate it exactly as you would an opponent's: existence, cause, recovery: then preserve everything about the investigation, take conduct advice where §4's findings warrant it, and ensure the certificate and any witness evidence state the position accurately: the honest, evidenced account (Example 3's defence) is both the ethical course and, in practice, the winning one. What converts a gap into a catastrophe is almost never the loss; it is the account of it that unravels. cflab. u k · e-disc ove r y. u k ©2026 Computer Forensics Lab Ltd ·cflab.uk ·e-discovery.uk ·info@cflab.uk ·+44 (0)20 7164 6915 Page 15 of 17
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