What’s All That Paper Really Costing Your Court?

Established law recognizes electronic copies, properly created, maintained and authenticated, as having evidentiary weight equivalent to the originals from which they are derived {See Sidebar}.. Nevertheless, there continues to exist an emotional tie that seems as powerful as the fear of falling:

What if we need the original some day?

The concern is that if someone someday disputes the veracity of the document, only a wet-ink, hard copy original will suffice to defend the claim. Thus, many court rules and processes require retention of hard copy even following full implementation of electronic document management systems.

Numerous studies have examined the costs of retaining and managing hard copies. Much effort goes into assuring that risk is mitigated to the greatest extent possible. But this approach begs the question: “Is the risk really as great as it is perceived?” Courts would do well to take a hard, objective look at their assumptions in view of the costs they must bear. 

In searching for someone, ANYONE, who had addressed this question through some objective analysis, I found a study done years ago that deserves attention. In 1998, an article in the Association of Records Management Administrators’ ARMA Records Management Quarterly entitled Long-term retention of paper originals: A case study[i] noted that

According to the proponents of paper retention, original paper documents would be of greater evidentiary value in legal disputes, particularly when the document in question was signed or otherwise authenticated in a manner more obviously provable by means of a paper original…

This approach has considerable emotional appeal, particularly if the matter likely to be sued over is at all serious. In such a case, the signed document is triumphantly retrieved and produced in court, and the matter effectively resolved in favor of the party in possession of the signed document.

This type of concern constitutes a fair amount of the reason for continuing court rules and procedures that require the retention of a hard-copy of court documents. But as the article goes on to point out,

…the entire concept’s utility depends upon the validity of that assumption, and the burden it necessarily demands of maintaining every such document against that one suit on the last day.

The article discusses a study performed to test the validity of the assumption using cancelled checks as the subject. The bottom line? Every assumption was false. The results are shown in the following chart.

Assumption Versus Fact

Assumption Finding
Check fraud is widespread Less than one one-thouandth of a percent were bad.  Of well over a million checks covered in the three-year study, 14 (0.0014%) were determined to have been fraudulent.
Fraud might be discovered any time during the five year statute of limitations Longest delay between fraud and detection was 140 days (13 percent of the retention period).  The rest were discovered within a month.  87 percent of the retention was essentially wasted.
Even if instances are few, the dollar value of the losses justifies the cost Total loss was less than one thousandth of one percent.  Of checks totaling $3 billion, the total aggregate loss was $4,000 (0.0013%).

For courts, why not at least ask the question: When was the last time the court (or anyone else) had to rely on being able to produce a wet-signature hard copy; and what would have happened if it had been unable to do so?

Sidebar

The Uniform Photographic Copies of Business and Public Records as Evidence Act (UPA) (US 1128-0020-00) – Enacted by almost all states, it specifies that reproductions of records have the same legal significance as the original and may be used in place of the original for all purposes including evidence.

The Uniform Rules of Evidence (US 128-0060-00 to 0170-00) – The other major uniform law, “The Uniform Rules of Evidence”, has been adopted by the United States federal courts and 34 states. The Rules of Evidence allow a duplicate to be admissible in evidence “to the same extent as an original” and defines a duplicate as a counterpart produced by any technique “which accurately reproduces the original”.

 
[1] Long-term retention of paper originals: A case study, ARMA Records Management Quarterly, Oct 1998 by Montana, John [link to link on website – http://findarticles.com/p/articles/mi_qa3691/is_199810/ai_n8817484/%5D

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s