I am an attorney, however the following should not be construed as legal
advice and no attorney client relationship may be presumed by this post.
<Unless you are using a certified Document Management system; how can
you prove, in Court, that the paper copy of an email that you present to
the Judge, is IDENTICAL To the original email?>
The short answer - you don't necessarily have to.
Court proceedings are 'hearings.' The in-court statements of parties,
percipient witnesses (or in some cases expert witnesses) are the primary
'evidence' to be admitted. Documents are prima facie 'hearsay.'
Hearsay (an out of court statement offered as proof of that being
asserted) is generally not admissible as evidence.
That said, documents come into evidence via the 'business records'
exception to the hearsay rule OR when they are authenticated by a
witness on the stand (and tacitly restated.) The business records
exception is predicated on the fact that businesses must create and
maintain records to do business, so the records are presumptively valid.
Authenticity and veracity are a different question and, if at issue,
ultimately for the jury to decide.
A business retains the management prerogative to create, define and
maintain its records system. Email can thus come in as electronic data
or as a paper printout either because it is maintained that way as a
"record" or because a witness authenticates the document on the stand.
Fortunately or unfortunately, as the case may be, Federal Rule of Civil
Procedure Rule 34 will be amended effective December 1, 2006 to create a
new class of discoverable thing. (Until them we have two classes -
"Testimony" and "Documents and Tangible Things.") The new class is
"electronically stored information." Accordingly, in addition to a
"document" that may be a 'record' or some other manifistation of either
electronic or paper data, the electronic data itself is discoverable and
can be offered as evidence. With this in mind, maintaining the
electronically stored version of any record, including email, becomes
critical if it becomes necessary to produce that information in
discovery in the event of a dispute.
William Kellermann, Esq.
Director, Corporate Legal Systems
CT Summation
CT, a Wolters Kluwer business
[log in to unmask]
www.ctsummation.com
-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On
Behalf Of Brent Reid
Sent: Tuesday, August 29, 2006 9:06 PM
To: [log in to unmask]
Subject: Re: [RM] Email Retention
Unless you are using a certified Document Management system; how can you
prove, in Court, that the paper copy of an email that you present to the
Judge, is IDENTICAL To the original email?
Anyone in the industry knows how easily documents can be manipulated
between time of receipt and time of printing to show what the
Organization wants to be shown.
How would You like to be facing a Judge with a Printout of an email
against a Defendant that had an electronic trail of the email to show in
Court, which proves your client did some thing wrong?
CYA
That is what Records Management is all about.
-----Original Message-----
From: Records Management Program [mailto:[log in to unmask]] On
Behalf Of Roach, Bill J.
Sent: Tuesday, August 29, 2006 10:13 PM
To: [log in to unmask]
Subject: Re: Email Retention
>>From what I have been reading lately, courts have been less likely to
accept printouts of email and require the "native format". What are the
comments about this?<<
Wouldn't surprise me if both the electronic and paper copies existed.
Electronic copy would probably be best evidence. However, if the only
copy is paper and it is in the files, and standard practice is to print
emails that are records and store them as paper copies, and you do it in
the regular course of business, I don't think the court would even
question it.
However, once there is notice...or reasonable anticipation...I would
recommend the delete switch be turned off.
Bill R
Bill Roach, CRM
Enterprise EDMS Coordinator
State of North Dakota
ITD/Records Management
701-328-3589
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List archives at http://lists.ufl.edu/archives/recmgmt-l.html
Contact [log in to unmask] for assistance
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