Greetings and happy new year. Well, I just couldn’t let this one go by
without a response. Yes, the Federal/state rules of evidence do provide
MOST of the rules for admissibility of records. I state “most” because
there are many other rules that affect records that must be considered, not
just the rules of evidence. Some of these rules include the federal E-SIGN
Act and the Uniform Electronic Transactions Act (UETA). Both of these acts
allow for records to be in electronic form and retain the same legal
authority as a paper document and/or signature, however, there are
exceptions. Another is the Uniform Business Records as Evidence Act
(UBREA). This Act permits the retention of records in particular formats to
be acceptable as evidence instead of an original hard copy document. All
uniform laws must be passed individually by each state, so a uniform law may
not have been adopted in your state. Therefore, research on a state-by-state
basis may be required to fully determine the requirements. To determine
which uniform laws have been adopted in an individual state, you can
research on a state-by-state basis at the NCCUSL website (National
Conference of Commissioners of Uniform State Laws). www.nccusl.org
<http://www.nccusl.org/> .
Depending upon the type of document – particularly in the financial services
area – a scanned document may not be used in place of the original, even
with the UETA or E-SIGN Act in place. While the UETA and the E-SIGN Act
permit electronic records to be admissible – one of the nuances of these
acts is the difference between an electronically created original and an
electronic duplicate (scanned document). Both are admissible in most
instances, but in the area of transferable records, only an electronically
created original is acceptable.
The IRS revenue procedure Rev. Proc. 97-22 provides requirements for
scanning hard copy records and retaining them to meet the requirements of
the IRS for audit purposes. “Records maintained in an electronic storage
system that complies with the requirements of this revenue procedure will
constitute records within the meaning of §6001 of the Internal Revenue
Code”. Other areas of the law which must be researched include the
Uniform Commercial Code. These codes have been and are currently in the
process of being updated to include provisions dealing with electronic
records – originals and scanned.
For federal records or records that must be created and retained to comply
with a federal agency requirement I would suggest reading the Government
Paperwork Elimination Act (GPEA) - “Under the GPEA, agencies must
generally provide for the optional use and acceptance of electronic
documents and signatures, and electronic record keeping where practicable,
by October 2003”. If scanning is part of your recordkeeping methodology,
then it most cases it should be acceptable as evidence for federal agency
review. Under the GPEA the Department of Justice is required to develop
and publish practical guidance on legal considerations related to agency use
of electronic filing and record keeping. See “Legal Considerations for in
Designing And Implementing Electronic Processes: A Guide For Federal
Agencies, November 2000” at
http://www.usdoj.gov/criminal/cybercrime/eprocess.htm.
I have not done any review of case law in this area but in all of the cases
I have read – scanned records have not been an issue. Many large companies
scan records on a regular basis and destroy the originals – USAA Insurance
is one I know of personally that has done this for many years – without
adverse consequences. Of course, there must be policies and procedures and
quality controls in place – plus meeting any standards for imaging from
organizations such as AIIM.
Well, that’s my 2 cents worth.
Rae N. Cogar, Esq.
RCS Consulting
5874 Shamrock Ct.
Hamburg, NY 14075
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716-646-6192
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