Question:
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Hi Ken,
I’m asked often by our SedonaOffice customers on the legalities of storing documents electronically. More specifically what is necessary to ensure an electronically stored document is legally stored correctly so it may still be used as an original document in a legal matter. Also, what’s your opinion on storing an original contract electronically, should the original contract be destroyed or saved?
Michael Marks
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Answer:
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Electronic documents are admissible in evidence in place of originals. You will face one additional hurtle.
Let's address what we mean by admissible in evidence. When there is a dispute that ends up in a court of law the judge will decide what will, and what will not, be considered in deciding the case. We have bench trials, where the judge is the trier of facts, or jury trials, where the jury decides the facts it will accept. In both cases however it is the judge who decides what evidence gets in to be considered.
Alarm cases, collection or defense, often depend upon the contract. It is not uncommon for there to be disagreement regarding a contract. Sometimes there are different versions; sometimes modifications that are challenged; sometimes signatures claimed to be forged, or the authority of the signer disputed. All of these issues need to be resolved before a written contract can be admitted into evidence and considered by the trier of facts.
With electronic contracts you have all of the above, because you will need to be able to establish the validity of the underlying document (I am of course talking about a document that starts out in writing and gets scanned, and not an electronically signed contract) and you will also have to establish that the scanned copy is a reliable copy of the original. You to this by the testimony of the record keeper who scanned, or supervised the scanning process, who will testify about the process and how your company insures that written contracts are turned into electronically stored documents.
In most lawsuit involving a contract the authenticity of the contract is usually not disputed. The battle usually turns on whether there was performance or on language interpretation.
If you do decide to store your contracts electronically be certain to scan the entire document, not just the front page. If you have room and can store the originals fine; it's not necessary.