Question 1

The other side says the documents were deleted under a retention policy. Is that the end of it?

Accepted Answer

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.

Question 2

Can deleted material really be recovered, or is that television?

Accepted Answer

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

Question 3

How do we prove something existed if it no longer does?

Accepted Answer

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.

Question 4

When does the duty to preserve actually start?

Accepted Answer

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.

Question 5

Will a court really draw an adverse inference?

Accepted Answer

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.

Question 6

We have discovered our own client's gap. What now?

Accepted Answer

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

The Missing Evidence Problem