>>Microfilm is evidentiary by statute is every court in the
land...Digital images are being accepted as evidentiary by case law<<

If I were a betting man, I would bet that the basis for the first
statement is UPA (Uniform Photographic Copies of Business and Public
Records as Evidence Act) which has been adopted by most states.
However, the same law also makes electronic images "evidentiary by
statute" to the same extent as microfilm.  The text of the law reads as
follows:

"...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, micro-card, miniature photographic, or other
process that accurately reproduces or forms a durable medium for so
reproducing the original...Such reproduction, when satisfactorily
identified, is as admissible in evidence as the original itself in any
judicial or administrative proceeding..."

Clearly, microfilm is evidentiary and so are electronic images.  Please
note the "or" following miniature photographic.  It clearly provides the
ability to use any "other process that accurately reproduces".  Imaging
is one of the other processes being allowable by statute.  And if one
cares to counter with the argument that imaging does not store the
electrons in a manner that accurately reproduces, they have added an
additional "or".  This one continues "or forms a durable medium for so
reproducing the original".  Any way you slice it, when prepared
properly, microfilm images are no more or less legal than electronic
images.

However, there is a couple of additional considerations.  UPA says they
are admissible as evidence, but the proof of the pudding is whether the
court says they are admissible.  The Rules of Evidence provide even
broader acceptance of duplicates, including microfilm or electronic
images.  Specifically Rule 1001 defines originals and duplicates,
including duplicates created by "electronic re-recording, or by chemical
reproduction or by other equivalent techniques which accurately
reproduce the original."   Rule 1003 follows with "A duplicate is
admissible to the same extent as an original..." (with specific
exceptions which would apply to both microfilm and electronic images).

In addition, two other Acts provide statutory authority to use images as
evidence.  UETA (Uniform Electronic Transactions Act) has been passed by
most states.  It clearly states that if a record is to be retained, and
electronic copy will meet the requirement (unless there exists a
specific requirement for the original record).  In addition, the Act
says: "Admissibility in Evidence.  In a proceeding, evidence may not be
excluded solely because it is in electronic form." 

>>it is recommended that you maintain the original hard copy or film it
as your copy of record while using the digital image for your working
copy.<<

No sure here who is making the recommendation.  I would no more
recommend retaining the paper after imaging than I would recommend
retaining extra copies of something I took to the copy machine. 

>>The images can be changed easily and there are no national standard
for digital format..<<

Here is another argument I often hear about.  Images can be changed
easily?  I don't buy it.  Folks that use ECM technologies to retain
volumes of imaged records have technology in place to track any changes
to the record.  And is doesn't matter that there is no national standard
for digital formats.  Remember the requirement of UPA "accurately
reproduces or forms a durable medium..." nothing in either statute or
Rules of Evidence indicate even a preference for a specific format.

>>What happens once a case is being argued with digital images and
someone can prove the image had been altered and no longer accurately
represented the original document>>

Altering paper records is far easier than altering digital images.

>>Digital conversion only saves an additional 4% of space but carries a
significantly higher cost to create due to the meta-data required for
retrieval, the on-going never ending cost of migration to the new
technologies in order to assure retrieval and lack of persistence in the
storage media resulting in a much higher risk on all fronts.<<

I don't believe this statement can be supported.  The process of
scanning and filming is nearly identical with both requiring document
prep.  Less prep is probably required for imaging due to automated blank
page deletion.  Image enhancement technologies also enable quality scans
from poor quality originals.  I absolutely disagree with the statement
that metadata capture is a greater expense with imaging.  If I use
exactly the same metadata for accessing the information, the tools I use
for indexing images are much more efficient than those used for
microfilm.  Additionally, one of the reasons I switched to imaging was
the ability to automate indexing and provide more information than is
typically provided with traditional microfilm systems.  Finally, a lot
of folks focus on the on-going cost of migration and media obsolescence.
Seems to me we are making a mountain out of a mole hill.  The vast
majority of records have relatively short retention timeframes.  Most of
ours are less than 10 years and I work for government.  Not sure where
others have been storing their images, but ours are stored on that same
storage systems that are used for mainframe data.  Folks have been
storing information on that for nearly 40 years.  Migrations and
upgrades to the storage environment are simply an ongoing part of the
business.  So much so that they are done without most folks even knowing
what is being done.  If the risk was so great, we wouldn't bet our whole
national defense on the technology (check out how they store the
technical manuals for a nuclear sub.  Paper copies stored offsite would
not be much of a benefit if you were broke down in a couple of thousand
feet of water.)

>>Once again it is a case of our technology evolving faster than we have
the ability to manage it!<<

Maybe it is not just our ability, maybe it is our willingness.

Bill R

Bill Roach, CRM
Enterprise EDMS Coordinator
State of North Dakota
ITD/Records Management
701-328-3589

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