Commercial disputes rarely begin with a writ. They begin with a warning letter, an unpaid invoice with a reason attached, or a project meeting where every word suddenly gets weighed. Long before anyone instructs lawyers, the records that will decide the case already exist — in inboxes, chat threads, shared drives and backup rotations. Some of them are being deleted, on schedule, right now.
That is the problem preservation addresses. It is not a discovery exercise in the American style; Swiss litigation has nothing like that. It is simpler: from the moment a dispute is foreseeable, you stop destroying what might become evidence — yours or the other side's.
Why routine deletion changes character
Every company deletes data, and should. Retention policies, mailbox limits, chat retention windows and periodic clean-ups are legitimate governance. But their legal character changes at a definable moment: when a concrete dispute becomes foreseeable. From then on, deletion under a routine policy starts to look like the destruction of evidence, whatever the intention behind it.
Swiss courts assess evidence freely. A party that once plainly held a document and can no longer produce it — especially one deleted after the dispute surfaced — invites the court to draw its own conclusions about why. In regulated industries, and wherever criminal law may be engaged, the consequences can go well beyond an unfavourable inference. The trigger is not the lawsuit. It is foreseeability.
What counts as evidence now
The honest answer: more than most managers assume.
- Chat messages, internal and external. Teams and Slack threads — and the WhatsApp exchange with the counterparty's project lead — are often the frankest record of what actually happened.
- Emails, including drafts, forwards and the ones nobody is proud of.
- Document versions and metadata. In a contract dispute, the negotiation history of a clause can matter as much as the signed text.
- Backups and archives, before they are overwritten in the normal rotation.
- The unglamorous rest: calendars, call notes, support tickets, CRM entries, system logs.
Early in a dispute you do not yet know the other side's theory of the case, so you cannot yet know what will be relevant. Preserve broadly; argue about relevance later.
Who to instruct, and how
A preservation instruction is only as good as its distribution. In practice, five steps cover most situations:
- Identify the custodians: everyone who dealt with the counterparty or the disputed project, including assistants, successors in the role and departed employees whose accounts still exist.
- Instruct IT explicitly. Auto-deletion rules, retention windows and backup recycling do not pause by themselves; someone has to suspend them for the relevant people and systems.
- Put it in writing, in plain language: what the dispute concerns, which topics and rough date range are covered, and one unmistakable sentence — do not delete, do not tidy, do not "clean up" folders.
- Cover devices, not just servers: phones with messaging apps, laptops, and private accounts where business was done on them.
- Renew it. Preservation erodes as people forget and new staff arrive. A dispute that runs for years needs the instruction repeated.
What not to do
Selective clean-up is worse than no preservation at all. Deleting unhelpful messages while keeping favourable ones is the behaviour courts punish most severely — and it is regularly discovered, because the counterparty usually holds the other end of the thread.
Just as damaging is manufacturing new evidence: speculative written commentary on fault ("this was probably our mistake"), circulated by email in the heat of the moment. Facts belong in the file; candid legal assessment belongs with your counsel, not in general circulation.
Make it a reflex, not a project
None of this requires litigation infrastructure. It requires a habit: when a dispute looms, one person owns preservation, sends the written instruction the same week, and confirms with IT that the systems have actually stopped deleting. A one-page playbook, agreed in calm times, is enough.
Whether preservation is warranted in a given situation, and how far it should reach, depends on the facts — a judgement worth making early, with advice. We make it with clients in the first days of a dispute, while the record can still be saved. If a business relationship is starting to turn adversarial, that is a good moment to talk.