The way forward for electronic documents

Those who oppose certain technologies on the grounds that they are not proven seem intent on hijacking the whole subject of the admissibility of electronically stored images in court.

The argument they put forward appears to be a rehash of the one espoused by microfilm vendors ever since the introduction of the first imaging systems five or six years ago. It runs like this: "The optical disk technology used to store images is not a proven technology. The manufacturers only guarantee the disks for 30 years and there is no guarantee that the same technology will be available to read these disks in 10 years, let alone 30. Microfilm, on the other hand, is an accepted technology that has already been around for 50 years."

However, much of the microfilm which has to be converted into an easy to read format for use in court is a mess. Many of the documents are illegible because of the way they have been filmed, or three pages have been filmed together which means the bottom ones cannot be read. In addition there is no certified audit trail to tell you who filmed these documents on which date.

None of this is the fault of the technology – it is probably just bad management. But the end result is the same: the documents cannot be relied on. Whichever format is used when converting paper documents the same criteria must be applied – the conversion must be properly managed and audited.

The suggestion that the technology to read an optical disk may not be available in 10 years time is spurious. For a start, few people have microfilm readers on their desks right now. At least with the widespread use of desktop technology, there is more chance that an individual user will have easy access to a reading device for electronic documents.

IT managers will also make sure they transfer any digital data to a new non-erasable medium if they dispense with old optical technology.

Unfortunately, documents stored on paper itself are not very secure. In the 1960s, the advent of carbonless paper for duplication was a tremendous advance and an immediate success. Many businesses have all copy records for the past 30 years stored in this format, but because they were stored incorrectly many can no longer be read.

Thermal paper used by fax machines is also rendered blank or illegible over time. And documents printed using cassette film typewriters and some modern laser printers have whole sections where words have disappeared from the page.

All these forms of paper documents are still wending their way to court. All are admissible. Each of these formats and the technologies used to produce them were readily accepted when first introduced, but without proper management none are truly acceptable.

The real issues regarding electronic document imaging are now being dealt with by the profession and its suppliers and guidelines have been suggested:

At scanning stage a complete audit trail should be retained and signed by the operator.

Images should be immediately stored in a non-alterable form, such as optical disk format. At the same time they should be held on normal magnetic disk for speed of access.

Images should be compressed using an industry standard format, such as TIFF.

If the paper is to be retained, a note of its location should be kept in the imaging record.

The most important factors for suppliers of imaging systems are whether the image is admissible as evidence in court and how much weight it will carry compared with the original document. I believe information stored on optical disks should be given greater weight than material produced in microfilm format because of the stricter controls that have been applied to imaging suppliers.

However, only time will tell if this is likely to happen. In the majority of cases, parties are prepared to accept most documents, including copies, as evidence. Over time, and once neither party sees imaging technology as offering a competitive advantage, the same benchmark will apply to scanned documents.

Of course, the problem of admissibility of electronically stored images only really applies to advice lawyers give to clients who will present evidence in court; lawyers usually take client documents in whatever form they appear – paper, microfilm, photocopies or images.

But lawyers are increasingly scanning these documents and storing them on computer to make them easier to handle. And if lawyers and the courts use image processing to increase the efficiency of the proceedings, the fact that they do not have the documents in their hands is purely academic – they can be made available if needed.

In most cases the originals are not called for and once the novelty of document imaging has worn off the practice of demanding originals will die out.

Lawyers should not allow themselves to become hung up on the technological arguments of whether micrographics is easier to alter than imaging, nor whether a particular storage device is longer lived.

The use of documents stored in electronic format is here to stay, but it should be ensured that the system's ease of use does not lead to sloppy auditing and the adoption of poor management procedures.