Rules and Statutes Supporting the Admissibility of Digitized Images in the Course of Litigation
12/10/2008
By: Ben Andrews - December 10, 2008
Currently the legal admissibility of images created by the process of document imaging is not completely black and white. There are several laws to look at before your organization makes a decision whether to move forward with a document imaging system. This should by no means be your sole counsel regarding the legal admissibility. This is meant only to give you a few rules and regulations to inquire about with your legal representation.
The 'Federal Rules of Evidence' Rule 1001 Section 4 states that, "A 'duplicate' is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original'. Thus from the previously stated rule we can assume that the process of scanning a hard copy into a digital form classifies the electronic image as a 'duplicate' of the original. Rule 1003 states, 'A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original'. Rule 1003 tells us that the duplicate is admissible just as the original. Rule 1004 Section 1 states that an original is not required if, 'Originals lost or destroyed-All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith'. From the previously stated rules it is gathered that a duplicated electronic file is admissible as long as there is no question to the authenticity of the original, as long as it would not be unfair to withhold the original, and the original has been destroyed without malice.
Title 28 of the U.S.C., Part V, Chapter 115 ("Evidence; Documentary") states, "If any business-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-has caused any or all of the same to be recorded, copied, or reproduced by any photographic, photostatic, microfilm, micro-card, 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-is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not."
The Kentucky Legislature statute KRS Chapter KRE.00 (formerly KRS 422A.00, "Kentucky Rules of Evidence") does not indicate anything to the contrary of the "Federal Rules of Evidence". KRE.00 Rules 1001 Section 4, Rule 1003, and Rule 1004 Section 1 read exactly as stated in the "Federal Rules of Evidence".
Other KRS Chapters state issues as to the admissibility and legality of electronic images, such as KRS Chapter 369.00 ("Information Technology"). KRS Chapter 369.102 ("Definitions for KRS 369.101 to 369.120") Section 7 defines an Electronic Record as, "A record created, generated, sent, communicated, received, or stored by electronic means." Section 13 of KRS Chapter 369.102 defines a Record as, "Information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form." Based upon the two sections of KRS 369.102 previously stated it is outlined that an electronic image classifies as both a Record and an Electronic Record. KRS 369.104 ("Prospective application of KRS 369.101 to 369.120") states that, "KRS 369.101 to 369.120 applies to any electronic record or electronic signature created, generated, sent, communicated, received, or stored on or after August 1, 2000." KRS 369.107 ("Legal recognition of electronic records, electronic signatures, and electronic contracts") Section 1 states that, "A record or signature may not be denied legal effect or enforceability solely because it is in electronic form." Section 3 of KRS 369.107 states that, "If a law requires a record to be in writing, an electronic record satisfies the law." KRS Chapter 369.113 ("Admissibility in evidence") states, "In a proceeding, evidence of a record or signature may not be excluded solely because it is in electronic form."
KRS Chapter 369 also contains information pertinent to the retention of records. Section 1 of KRS 369.112 ("Retention of electronic records - Originals") states, "If a law requires that a record be retained, the requirement is satisfied by retaining an electronic record of the information in the record which:
* (a) Accurately reflects the information set forth in the record after it was first generated in its final form as an electronic record or otherwise;
* (b) Remains accessible for later reference."
Section 4 of KRS 369.112 states, "If a law requires a record to be presented or retained in its original form, or provides consequences if the record is not presented or retained in its original form, that law is satisfied by an electronic record retained in accordance with subsection (1) of this subsection." Section 6 of KRS 369.112 states, "A record retained as an electronic record in accordance with subsection (1) of this section satisfies a law requiring a person to retain a record for evidentiary, audit, or like purposes, unless a law enacted after August 1, 2000, specifically prohibits the use of an electronic record for the specified purpose.
To read more about legal issues regarding document imaging click here.
