Legal Admisibility

The Legal Admissibility of information stored on Electronic Document Management Systems:

The documents can be scanned and stored electronically and the paper copy can be destroyed. However if you plan to keep the original along with the electronic, the paper copy will have to be presented as a primary evidence. In order to make electronic copy act as primary evidence, the authenticity of scanning system or scanning company will have to be proved along with the proof of destruction.

EDS follows the following key points to Maximising the evidential weight of digital records that we scan for our every customer:

• Create and maintain a procedures manual.  Describe all procedures related to the operation and the use of our system including input, output and operation.
• Maintain an audit trail. The digital system must contain a secure record of all read-write accesses to the data.  Audit trails should enable you to assess the historical content of the data file whenever necessary.
• Set and document access permissions available to the digital system.  Only permit staff with relevant access rights to create new records.
• Confirm that facilities within the digital system are adequate to ensure that data accuracy and data authenticity are preserved throughout the lifetime of your records.
• Document system procedures and operations to show how the system operates and to demonstrate that it was operating correctly.
• Document any special techniques we use, such as compression. 
• Plan for the long term preservation of your records so that you can read and retrieve them for as long as they are needed.
• Ensure that you adhere to the hardware manufacturer’s recommendations for the operational environment of the system.
• Audit compliance with the Code periodically to demonstrate that you are meeting its requirements.

Can I store documents photographically or electronically, and destroy the originals? 

Original documents, such as deeds, guarantees or certificates, which are not your own property, should not be destroyed without the express written permission of the owner. Where the work has been completed and the bill paid, other documents, including your file, may be stored, for example, on a CD ROM, computer system or microfilm and then destroyed after a reasonable time. In cases of doubt the owner’s written permission should always be sought. If it is not possible to obtain such permission you will have to form a view and evaluate the risk. When seeking owners’ permission to microfilm or store data electronically and destroy documents, you may wish to reserve the right to make a reasonable charge for preparing copies if they are later requested. See question 4(a) above for the requirements of Customs and Excise.

What is the evidential value of a photographically or electronically stored document where the original has been destroyed? 

There is a dearth of judicial authority on this topic and, until the law and practice on the subject of microfilmed or electronically stored documents are clarified, it is only possible to provide general guidelines. The Society has been advised that: 

A microfilm of any document in a solicitor’s file will be admissible evidence to the same extent, no more and no less, as the document itself, provided       that there is admissible evidence of the destruction of the document and identification of the copy.
Written evidence of the destruction of the original and of identification of the copy will enable the microfilm to be adduced in subsequent civil proceedings (under the Civil Evidence Act 1968) and in criminal proceedings (under the Police and Criminal Evidence Act 1984).
What procedures would the Society recommend where an original document is stored electronically or photographically and then the original is destroyed?

Written evidence of the destruction of the original and of identification of the copy must always be preserved in case oral evidence is no longer available when needed (see question 7(b) above).
 
There should be a proper system for:
(i) identifying each file or document destroyed;
(ii) recording that the complete file or document, as the case may be, has been photographed;
(iii) recording identification by the camera operator of the negatives as copies of the documents photographed; and
(iv) preserving and indexing the negatives.
 
If a microfilm, electronically or photographically stored data is required to be produced in evidence, a partner or senior member of staff should be able to certify that:
(i) the document has been destroyed;
(ii) the microfilm, electronically or photographically stored data is a true record of that document; and
(iii) the enlargement is an enlargement of the microfilm, electronically or photographically stored data.
 
Microfilm copies of some documents (e.g. coloured plans) can be unsatisfactory, in which case the originals should be preserved