"Certifying" documents via third-party software: binding on the court?

AuthorWohlsifer, William R.

[ILLUSTRATION OMITTED]

"Does the use of third-party software to certify documents or signed contracts outweigh the time and costs allocated to the process?" is a common query from corporate clients. As an attorney, a more pertinent question in need of answering would be: "Is the third-party software certification process necessary in order to meet today's evidentiary standards regarding electronic copies of documents as business records?" The specific focus of this article is the admissibility into evidence of the conversion of original paper documents and contracts to digital image files, then back to paper form for use in court. Although digital image copies are widely recognized at federal and state levels to be admissible, in Lorraine v. Market American Ins. Co., 241 F.R.D. 534 (D. Md. 2007), the court identified a "growing recognition that more care is required to authenticate ... electronic records than traditional 'hard copy' records." (1) Determining the answers to these questions requires an examination of federal and state laws and court precedence in place regarding use of digital image copies as evidence.

Uniform Photographic Copies of Business and Public Records as Evidence Act

One of the first federal laws to recognize the evidentiary issue of photographic copies was the Uniform Photographic Copies of Business and Public Records as Evidence Act (UPA) (2) enacted in 1949. The UPA authorizes the destruction of original paper records that have been accurately reproduced. (3) Codified in Title 28, Ch. 115, U.S.C. [section] 1732, it provides:

If any business, institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence, or event, and in the regular course of business has caused any or all of the same to be recorded, copied, or reproduced by any photographic, photostatic, microfilm, microcard, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not and an enlargement or facsimile of such reproduction is likewise admissible in evidence if the original reproduction is in existence and available for inspection under direction of court. The introduction of a reproduced record, enlargement, or facsimile does not preclude admission of the original. This subsection shall not be construed to exclude from evidence any document or copy thereof which is otherwise admissible under the rules of evidence. (4)

All original paper copies and digital copies of documents and contracts or other documents that are responsive to a filed or reasonably foreseeable lawsuit should not be destroyed, even if such destruction is part of an organization's established records retention policy as the court stated in In re the Prudential Ins. Co. of Am. Sales Practices Litig., 169 F.R.D. 598 (D.N.J. 1997). (5)

The Lorraine Analysis of Fed. R. Evid. 901 and 902

While documents can be destroyed once they are copied, except for the circumstances enumerated above, the electronic copies must still meet evidentiary standards in compliance with state and federal rules of evidence. The Lorraine court took on the challenge of analyzing the evidentiary rules and case law that control the admissibility of electronic evidence. (6) The court found that Fed. R. Evid. 901(a) requires that the electronically stored information be shown to be authentic by showing that it is what the party claims it to be--not a particularly difficult obstacle to overcome. (7) However, the court noted that "the inability to get evidence admitted because of a failure to authenticate it almost always is a self-inflicted injury which can be avoided by thoughtful advance preparation." (8)

The Lorraine court further found that Fed. R. Evid. 901(b) provides examples of how authentication may be accomplished. (9) In particular, Rule 901(b)(4) provides: "Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances." (10) The third-party software certification process does not necessarily contribute to satisfying these examples. When...

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