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PAPERLESS OFFICE Paperless Office - Fact or Fiction As computerization progresses we are able to maintain many items in electronic form however, the following are some items to be considered when going paperless.
"Making it, As Easy as it Should Be" After much hype and anticipation, the age of the paperless office is finally here. As technology has improved, an increasing number of businesses are choosing to store their original paper documents electronically by scanning and destroying the originals. Given this growing trend among businesses to move to purely electronic storage of day-to-day business documents and other records, one important question remains: Do business documents have to be stored in hard copy form after scanning? The answer to this question rests in two key inquires: The first is whether the electronic version of the paper record satisfies retention requirements imposed by federal and state statutes and regulations, so that the document can be used if the organization is audited by a federal or state agency. The second is whether the electronic copy can be admitted into evidence during litigation. Of course, the latter inquiry is of particular significance to counsel who may subsequently face questions of the admissibility and authentication of the scanned documents. Traditionally, under the common law best evidence rule, parties were required to produce the original writing or document into evidence. Thus, copies of documents were not routinely admissible in court proceedings unless the original was shown to be unavailable through no fault of the proponent. This archaic view, however, dated to the time when copies were made by hand and were therefore subject to inaccuracy. As technology has improved over time, an increasing number of businesses are moving to electronic storage of documents without retaining the originals. As a result, courts and legislatures are now creating exceptions to the common law rule, which allow for the routine admission of electronic copies of original documents. The option for providing copies of records is specifically addressed in existing federal and state statutes. Generally, the admissibility of electronic records into evidence depends on the laws and rules of evidence that affect the admissibility of duplicate records. Existing statutes and rules of evidence overcome the presumption of the best evidence rule that the original is best, and all duplicates will be considered inferior. Thus, as a practical matter, all state and federal courts will admit duplicate records into evidence, provided that they accurately reproduce the original. Two major uniform laws have modified the best evidence rule by establishing the admissibility of duplicate records into evidence, regardless of whether the original records have been destroyed in the regular course of business. The Uniform Photographic Copies of Business and Public Records As Evidence Act has been adopted by the federal government and the majority of states, including the commonwealth of Pennsylvania. This law permits duplicate records to be admissible into evidence provided that they were prepared by a "process which accurately reproduces ... the original." The UPA also permits the original records to be destroyed after reproduction, and provides for use of the duplicate record in court proceedings. The second major uniform law, The Uniform Rules of Evidence, has been adopted by the federal courts and a majority of states and defines a duplicate as a counterpart produced by any technique "which accurately reproduces the original" and allows a duplicate to be admissible in evidence "to the same extent as an original." Although Pennsylvania has not adopted the Uniform Rules of Evidence, it still permits a duplicate to be admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original, or in the circumstances it would be unfair to admit the duplicate in lieu of the original. Given these laws, from a litigation perspective, there is nothing to prevent a business from scanning and destroying original documents. If, in fact, litigation were to arise following the document scanning and destruction process, the "best evidence" may turn out to be a print out of what was scanned. Even so, it bears emphasizing that issues regarding whether a document is the "best evidence" arise only if the other side objects to the document and meets their burden of showing that there is a genuine issue as to the authenticity of the original, or as to the trustworthiness of the duplicate. If indeed there is a genuine question as to authenticity or trustworthiness, counsel might also have to explain the safeguards of the scanning system to authenticate that the scan was a faithful replica of the original. Thus, if it is critical to the success of your case to admit into evidence computer stored records, it would be prudent to plan to authenticate the record by the most rigorous standard that may be applied. If the exceptions to the best evidence rule are not comforting enough, then consider that the federal courts and many state courts have now adopted e-filing, which allows attorneys to upload PDF copies of pleadings, instead of filing paper documents. Unless questions regarding authenticity of original documents are raised, these federal and state courts do not require the attorneys to file the paper originals, instead considering the PDF copies as originals. Nevertheless, despite the advances of technology, the permissibility of e-filing and the various exceptions to the best evidence rule, the rule may sometimes still apply. Despite the broad latitude of courts with regard to most original documents, there are still some documents that should always be kept in original form. Some examples are corporate formation documents such as charter, certificate of incorporation, articles of incorporation and other documents that affect identity or organization; certificates of title not recorded; negotiable instruments that have not been paid; and stocks, bonds, underwritings, mortgages, notes, vouchers, and stock and bond certificates that have not been canceled, redeemed, retired, sold, de-registered or otherwise disposed of. Accordingly, before advising your client that they can scan and destroy all records, you should periodically consult applicable state and federal regulations to ensure compliance with specific agency requirements. While the ultimate answer as to whether business documents have to be stored in hard copy form after scanning will depend on each organization's particular circumstances, generally, paper originals can be destroyed after scanning if counsel believes that they can answer any challenges to authenticity that might arise. Ideally, the records custodian should clearly document in a statement why the organization has decided to destroy the records, and that it has created an alternative system for preserving the information. This should include that the records were made and received in the regular course of business within a reasonable time of the transaction involved; the records were kept in the regular course of business; the electronic duplicates have been compared to the originals and are true and correct; the destruction is being performed in good-faith and in the regular course of business; and that to the company's good-faith knowledge and belief, no litigation is pending or anticipated that would involve the records being destroyed. If the business implements such procedures, it should be able to retain the records identified in its document retention policy in electronic form, have those documents accepted by various federal and state agencies for audit purposes and have the duplicate documents admitted into evidence as though they were original documents. Jeffrey D. Roberts is an associate in the Pittsburgh office of Burns White & Hickton. Roberts focuses his practice on the firm's business and litigation groups and heads the firm's electronic discovery team. He has been with the firm since 2004 and previously spent four years serving in the U.S. Navy Judge Advocate General's Corps as military defense counsel and as a special assistant United States attorney. Nina Wadhwa is an associate in the firm's Pittsburgh office. Wadhwa practices in the business and transportation groups with an emphasis on occupational illness defense and health care law. She is a member of the firm's electronic discovery and risk management teams. "Making it, As Easy as it Should Be" |
