Records and evidence are not the same thing. Evidence is a fact that proves (probans) that another fact which has to be proven (probandum) has occurred. Documentary evidence, specifically, is any evidence that takes the form of written information attached to a stable medium in a fixed form, but it does not have to be a record: it can be a book, a newspaper, the grocery list, writing on the wall, you name it.  

Backups are not records because they were created only for the purpose of disaster recovery rather than in the usual and ordinary course of business and for the purposes of such business (see related exception to the hearsay rule). It is important to destroy backups on a rotation for a variety of reasons (usually after the third backup is done one destroys the third) when they reproduce records in the recordkeeping system, and it is always advised to destroy all the backups for the records that are destroyed according to a retention and disposition schedule so that the reproductions in the backup cannot be used as evidence (note: not as records) against the organization after its records have been destroyed. It was fortunate that the prosecutor against Oliver North found non-record evidence against him after the record had disappeared but this does not make of the backup a record (not even a record of the court prosecuting it, as in that context it is an exhibit).

Dr. Luciana Duranti 
Professor, Archival Studies
School of Library, Archival, and  Information Studies
The University of British Columbia | The Irving K. Barber Learning Centre
470-1961 East Mall, Vancouver, BC V6T 1Z1
Phone 604 822 2587 | Fax 604 822 6006
[log in to unmask] | www.slais.ubc.ca |
Director I Centre for the International Study of Contemporary Records and Archives
www.ciscra.org

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