Legal Admissibility of Electroninc Documents

General opinion is that document image processed documents are likely to be admissible in court, with the same weight as of evidence as photocopies and microfilm documents which are considered as secondary evidence. There is a potential reduction in the weight of evidence if the authenticity of the copy is questioned (e.g. if a signature is being disputed).

Within the framework of PD5000 and PD0010 - 'Principles of Good Practice for Information Management' - The British Standards Institution has published a Code of Practice (PD0008:1999) concerned with the 'Legal Admissibility and Evidential Weight of Information Stored Electronically'. Compliance with the Code does not guarantee legal admissibility - it defines best practice by which a company may demonstrate at any time, in a manner acceptable to a court of law, that the contents of a specific data file created or existing within a computer system have not changed since the time of storage (i.e. when the file is 'frozen'), and that where a data file contains a digitised image of the physical source document, the image is a true facsimile of that source document. The issue being addressed is essentially one of authentication.

This BSI link takes you to a page summarising the codes of practice relating to information management and e-commerce. See also the sections on ISO 15489 and BSI PD5000.

The UK Public Record Office also provides useful guidance on best practice with relation to records management. They place emphasis on records retaining their qualities of Authenticity (as an accurate account of an activity, transaction, or decision), Integrity (an assurance that the data has not been changed subsequently) and Non-repudiation (preventing the originator from disowning the record). Please also see the Records Management Systems section.

Of growing importance is the application of best practice to the management of email records. Argument could arise over who created the email, whether it was sent by the person who said to have sent it, whether it has been altered, and whether it was received by the person it was sent to. Secure and comprehensive audit trails (maintaining the message and attachment as an integral unit), together with proof of delivery, are therefore very important. In addition to ensuring that selected technology manages records in a secure and auditable manner, it is also important to make sure that Policies & Procedures are in place to institute good practice in information management.

Your solicitor should be able to give an opinion on which types of documents are most likely to be disputed in court. There may also be different considerations for civil (on the balance of probabilities) and criminal (beyond reasonable doubt) law.

Legal admissibility pitfalls

Electronic documents can easily be thrown out of court when so-called 'compliance points' are found to be missing in systems from which a company sources evidence, according to experts at the British Standards Institute. These include:

* No information policy document;
* No retention schedule;
* Inappropriate security controls;
* Lack of procedural documentation;
* Insufficient control on document input procedures;
* Insufficient information about the technology from the system supplier;
* Use of inappropriate facilities, such as image clean-up;
* No thought of future migration requirements;
* Lack of documentation on audit trail content and access procedures.

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