Are legal records worth the paper they’re written on? Electronic documents and records are replacing their paper counterparts in many sectors, but the legal industry is taking longer to adapt. While electronic records provide the security that crucial information is backed up should something happen to your office, can online legal documents fulfil the same evidentiary requirements and benefits as paper copies?
Paper use is dying hard in the law office. In part this is down to habit, but there are also key legal ramifications for using hard copy – in particular, the notion that electronic copies can be tampered with.
To get an idea of how attached lawyers are to paper, document-management company Fuji Xerox commissioned a study called Paper Still the Rule for Australian Law Firms. It sampled 100 Australian law firms with fewer than 300 employees, and discovered astonishing results.
According to the survey, 80 per cent of law firms still printed all or most of the documents they received electronically, while 79 per cent use hard copies when exchanging documents with other firms. The survey found the dominant reasons for using hard copies was force of habit, with legal requirements running a close second. Ease of access came in third.
The legal ramifications
In the past, the law stipulated that lawyers must keep hard copies of documents for seven years, which explains some of the resistance against relying purely on electronic files. However, the Evidence Act 1995 states that in the majority of instances original documents are no longer required, and copies of documents are as good (and as admissible) as original documents in most legal proceedings. This Act applies to all Commonwealth jurisdictions, as well as several states – including NSW and Tasmania – that have adopted the law.
Of course, it would be possible to call into account the integrity of the machine used to produce the electronic document or the copy of the original paper version. However, section 146(2) of the Act states it is reasonable to assume that if a machine produces a given output in the course of its normal use, then the output of the machine can be considered to have integrity with the hard copy.
The practicalities of electronic versus paper
In theory, then, it is perfectly feasible for law firms to go completely electronic. However, whether it’s practical for them to do so remains another matter.
Global law firm King & Wood Mallesons has examined how the legal fraternity uses electronic documents. The firm’s overview found that although evidence laws had changed to accommodate electronic recordkeeping, lawyers still faced several key challenges when using electronic records versus soft copies. These included:
- Hard and soft-copy versions aren’t always identical. Electronic copies can contain hidden information, including metadata, which may come to light when forensically examined.
- Hard-copy documents need only be viewed and read by the naked eye, whereas soft-copy documents inevitably require appropriate hardware, software and a level of expertise to be accessed and ‘translated’ into comprehensible form.
- Soft-copy documents are vulnerable to tampering and forgery in an entirely different manner to hard-copy documents.
- Soft-copy documents are, generally speaking, both easier to copy and disseminate, and more difficult to destroy.
It is also vital to keep proper records of generating, archiving and storing documents, to demonstrate that they were not tampered with.
According to King & Wood Mallesons, “Although under the Evidence Act there is a presumption that a copy of an original is admissible, there is no presumption that the evidence is reliable. Therefore, it is very important that proof of the system [and] record integrity of records are consciously generated and kept.”
Even a simple IT system upgrade can break the chain of production with a document, making it hard to prove that the electronic copy has the same integrity as the original document. Upgrading IT systems, therefore, requires full backwards compatibility with the old systems so that the evidentiary chain remains unbroken.
Of course, both electronic documents and paper records should also be retained for at least the minimum period stated in any applicable statute or regulation (there are more than 80 acts, regulations and rules regarding document retention under Australian law). Therefore, it is just as essential to have full offline backups of electronic records as it is preferable to have electronic records to back up your paper copies.
As the digital economy continues to take hold across the legal industry, and the law changes accordingly, it is possible for law firms increase the number of records and files they keep electronically, reducing the cost of storage and increasing peace of mind. However, old habits die hard, and while there are legal reasons to maintain at least some hard copies, it’s likely many law firms will continue to retain paper versions across the board.