Legal issues with electronic documents

In general terms, English law does not prescribe a method for the storage of information except for patent applications and bankers books. However, there are many requirements related to industry regulators that historically require paper-based original documents to be retained. This situation is fast changing, with many regulators now accepting well-managed electronic creation and storage of corporate records as normal practice. The Law Society recommends that where a document is converted electronically and the original destroyed, written evidence of the destruction must be preserved.

If paperwork is scanned in-house and there is a chance those documents may need to be presented in evidence in court or other tribunal, it is important to scan to British Standard BS 10008:2008.

The inherent problem with electronic evidence is that is can so easily be manipulated

We are often asked by clients “can I destroy the original documentation once it has been scanned?” The answer is, as long as you follow the correct process in committing your records to digital image, “yes”.

BS 10008:2008 has been with us three years and is a standard to judge the legal integrity of IT systems. In practice, as this standard starts to become more widely adopted, any IT system whose data may be required for use in court will have to be certified.

Increasingly if data cannot be shown to have come from a system certified to BS 10008, lawyers may question the validity of that electronic evidence and will be able to diminish its legal weight, if not have it treated as hearsay and rendered inadmissible.

Adoption of this 2008 standard should form part of a thought-out strategy for managing information risk. Document capture is the process of converting these paper documents and data into reusable electronic information. There are two core reasons businesses deploy document capture solutions:

• to store important business records for permanent or long-term preservation;
• to enable data to be processed more quickly and efficiently.

BS 10008 also has a role to play with Building Information Modelling (BIM) which increasingly is taking hold of the process of generating and managing electronic information about a building during its entire life cycle. 3D/4D co-ordination efforts and understanding that “clashes” happen in both space and time takes getting to grips with. Like all material generated on a project there is risk where the contractor participates in drafting the specifications/buildability reviews, etc but more so with BIM. It begs questions like, does the contractor have superior knowledge about the specification? Did the contractor have “significant participation” in development of the specification? Will dimensions be accurate? Will quantities be accurate? Will detail be adequate to provide for clash detection? Did the contractor suggest a “buildability” change which varies design? Does the client (through its designer) or contractor have “control” of the design? Designers may feel less in control of design because the BIM lead contractor implementing BIM will suggest changes and in that way stray on to the designers pitch. The best solution in the suite of team contracts is to address specific BIM risk allocation up front in contracts, and up at the outset with electronic data storage and agreed logistics for exchanging electronic data.

Most large projects require significant documents to be kept for as long as they are necessary to maintain or modify the assets, comply with statutory requirements, to make or defend claims and to facilitate future planning. The format of these documents could include but is not limited to electronic files, email, microfilm, datastick, magnetic tape, diskettes, video tapes, books, etc.

But like most British Standards, they are voluntary and only become binding when invoked in contract or legislation. To ensure admissibility, information must be managed by a secure system throughout its lifetime. Where doubt can be placed on the information, the evidential weight may be diminished, potentially harming the legal case, particularly where criminal evidence is concerned. So think prosecution by HSE, OFT, the Bribery Act, etc.

The inherent problem with electronic evidence is that it can so easily be manipulated. Submissions are often deployed in court to undermine electronic evidence if there is an opportunity for it to have been altered in any way, which is why there is a court practice rule devoted to it. However, businesses should also appreciate that failure to comply with the standard is not fatal to the admissibility of evidence. Failure to comply is unlikely in a civil case to result in the evidence being classed as inadmissible. Similarly, compliance with the standard will not necessarily render what is otherwise inadmissible admissible in a civil case. The issue for practitioners and clients is more one of authenticity (therefore weight) than admissibility outside of the courtroom.

Specific areas covered by the standard include:

• managing risks associated with electronic information
• demonstrating authenticity of electronic information
• managing electronic information over long periods, including through technology changes, where information integrity is a vital business
• managing quality issues related to document scanning
• provision of a full life history of an electronic object.

Successful digital curation ensures that data is managed and protected so that its authority is maintained and retained throughout the curation lifecycle. Marshall McLuhan was right when he declared why this is all-important because the medium is the message.

Simon Tolson is senior partner in Fenwick Elliott