At any time of the day around any of the courts precincts in our cities there is a high probability of seeing well-dressed people dragging suitcases or pushing trolleys laden with document boxes. Evidence. Evidence for a trial. Evidence of a lot of work. Evidence which could be handled, exchanged and presented more efficiently.
Being fair and just, it is a somewhat recent development for evidence to be permissible in court in an electronic format. Previously one had to see the ink of the signature, feel the paper of the document and even email was printed. There was always the contention a digital document could be amended. So what about forgeries? Forgery was practised for many centuries before digitisation occurred.
Times have changed. The Evidence Act 1995 has even abolished with the original document or ‘best evidence’ rule, allowing for documents held in electronic and other non-paper forms. Previously an original document had to be produced in writing, i.e. on paper, now documents may be provided in many forms including information governance, such as:
- The original document either in digital or paper form
- A paper or digital copy of the original produced by a device such as a photocopier or a computer
- A transcript of a document recording words as an audio tape or shorthand notes
- A business record being a paper or digital extract, summary or copy of the original document.
Technology has made documents far more secure, due to their electronic “foot print”. Documents in Portable Digital Format (PDF) are particularly secure, whether they are “born” digital or a document has been scanned and saved as a PDF. This format can be completely secured, preventing copying, editing, conversion to another format and not even printing is possible. Each PDF has an electronic footprint which stores the originator information and changes made along the way are also recorded resulting in tight version controls to ensure the origin remains valid.
When submitting documents in digital form as evidence, being able to prove its origins is important to evidence being admissible.
Digitisation, now an accepted legal format, presents many advantages for the legal profession, apart from lessening the load for a day in court.
Digital documents can be found anywhere, at any time, by more than one person. Metadata can be found using keywords, document numbers, names and other criteria determined by a document management system. Forget the circulation of files, which inevitably sit on desks for too long, leave them in an archive for the length of their life. Digital information can be shared collaboratively enabling a team to see, discuss and review information simultaneously. Efficient, timesaving and practical.
Many courtrooms are now equipped with technology, and many offer an online booking service for technology which may be required during a hearing. One example is the Supreme Court of NSW which has a range of technology to be used including “E-Courts” enabling the ability to electronically exchange discovery lists and documents.
The Federal Court has a guide to “Electronic Litigation”, as well as e-lodgement and a Commonwealth Courts Portal.
Office space is not cheap and the possibility of reducing floor space should be attractive. Converting paper documentation to a digital format, can make that possible. The legal profession, in particular needs to retain documents for varying periods, depending on the nature of the information. Retention periods can range from five to 15 years and that can amount to a lot of paper and compactus to hold it all.
More and more documents are now born digital but it is all the past hard copy documentation which when scanned will be more accessible, easily shared and more effectively scheduled for destruction.
Digitisation itself, is a large, labour intensive task but this too can be minimised by engaging a suitably qualified organisation to handle the entire task.
Grace Information & Records Management is in a unique situation where it can remove large quantities of files, store them in a secure facility, scan them within secure bureaus, by staff with appropriate security clearances, facilitate the retrieval of the information via a secure portal and when the time comes, destroy the files securely.
Thomson Reuters quote a survey of legal firms in Australia which showed 80 per cent of law firms still printed most of the documents received electronically, and 79 per cent use hard copies when exchanging documents with other firms. One of the main reasons was force of habit. Complying with legal requirements was second but ease of access coming in third, indicates a lack of awareness.
Habits can be broken and in this area, they should be broken. Yes, there are still legal requirements for hard copy but they are in the minority and the Evidence Act 1995 clearly establishes this.
The electronic footprint is not the only issue. Consider the carbon footprint. A significant reduction in the use of paper is a significant step to reducing stress on the environment. The Association for Information and Image Management has this comparison – “A tree can only produce, on average, 17 reams of paper, and takes about 100 years to grow and producing 17 reams of paper releases 110 pounds of carbon dioxide into the atmosphere.”
Figures which are worthy of consideration when planning your digital future.