can$you$legally$destroy$ …...the legal scope of this presentation is limited to the united states...
TRANSCRIPT
Can You Legally Destroy Paper Records that Have
Been Imaged?
Robert Williams, Cohasset Associates Hon. Ronald J. Hedges
The contents of this session should not be
viewed or interpreted as legal advice
The legal scope of this presentation is limited to the United States
____
Federal Rules of Evidence
Federal & State Statutes
Federal and State Case Law
Robert F. Williams Cohasset Associates, Inc.
• President, Cohasset Associates, Inc. -‐ 44 years • Co-‐chair, NaGonal Conference on Managing Electronic Records -‐ 22 years • ExecuGve Editor, Cohasset’s legal research white papers -‐ 10 years • Editor of the Cohasset’s definiGve legal research studies:
§ Legality of Microfilm -‐ 1979 § Legality of Op3cal Storage -‐ 1989 § Legality of Digital Image Copies of Paper Records -‐ 2008
• Publisher, Authen3c Electronic Records: Strategies for Long-‐Term Access -‐ 2002 • Renowned expert on the legality of non-‐paper records storage media and the
disposiGon of original paper records: § 1000+ presentaGons -‐ United States, Europe, & South America § Expert witness -‐ Campbell vs. State Farm § AdmiZed to the Company of Fellows: AIIM InternaGonal -‐ 1983 and ARMA InternaGonal -‐ 1992 § Recipient of the EmmeZ Leahy Award -‐ 1991
Hon. Ronald J. Hedges Ronald J. Hedges, LLC
• United States Magistrate Judge, District of New Jersey, 1986-‐2007
• Member, Sedona Conference Advisory Board
• Coeditor, Sedona Conference Coopera3on Proclama3on: Resources for the Judiciary (all ediGons)
• Coauthor, Managing Discovery of Electronic Informa3on: A Pocket Guide for Judges (Federal Judicial Center) (both ediGons)
This Session Is NOT About… Are records and image copies of records legally admissible in a legal proceeding? Ø Long-‐standing issue:
1971 -‐ Admissibility in Evidence of Microfilm Records – Eastman Kodak 1979 -‐ Legality of Microfilm – Cohasset Associates 1989 -‐ Legality of Op3cal Storage – Cohasset Associates
Is ALL About… Can your organizaDon legally destroy images paper records? Ø RelaGvely new issue
driven by: Storage costs – ever-‐ increasing volume of retained records Legal discovery costs – exponenGally greater volume of e-‐records
Cohasset’s White Paper of the Legality of Digital Image Copies of Paper Records
For addiGonal informaGon about the legality of digital image records and copies, please reference the 27 page White Paper Cohasset prepared for IBM on this subject. hZp://www.cohasset.com/retrievePDF.php?id=9
Overview Of This Session
Ø Why OrganizaDons Have Records Ø Why OrganizaDons Have Image Copies Ø Four Key Legal QuesDons Regarding Image Copies of “Original” Paper Records
Ø What OrganizaDons Need To Do To Make The DisposiDon/DestrucDon of “Original” Records Defensible
Your quesGons are very important.
We want to answer your ques.ons. Please defer asking your ques.ons un.l the end of the presenta.on.
PART 1: WHY ORGANIZATIONS HAVE RECORDS
Records Are The Result Of…
Ø Growth in the volume of business/government Overwhelming human ability to accurately retrieve needed informaGon
Ø Employee turnover CriGcally impairing the accuracy and Gmeliness of retrieving relevant details of past events
Ø Increasingly complex business prac3ces ResulGng in “fracGonalizing” employee informaGon knowledge
The Importance of Records
Ø Records facilitate all aspects of commerce and government
Ø Records are recognized as the most trustworthy evidence of an organizaGon’s transacGons, processes and decisions § Respected accuracy, § Detail and § Completeness,
The Importance of Records
Ø Records are always important in determining the outcomes of disputes.
Ø Records also are essenGal in achieving regulatory compliance -‐-‐ with the intrinsic, ongoing regulatory requirement for organizaGons to “prove the negaGve”.
Records Are An EssenDal Asset
Ø Like other business assets, (money, people, materials, faciliGes, etc.) records must be managed in accordance with a “uGlity life-‐cycle” i.e. records, like other business assets, must be retained as long as they are needed.
Ø When records are no longer needed, they should be disposed of in the regular course of the business’s acGviGes.
For A Record To Be AdmiWed Into a Legal Proceeding,
The Contents of the Record Must Be:
Ø Relevant to the maZer at hand, Ø Demonstrably accurate, Ø Reliable – created by “experienced professionals”
Ø Trustworthy – relied on in the “regular course of business”
Your Takeaways – From Part 1
Ø Records are essenDal Ø When evaluaDng records, triers of fact seek:
§ Accuracy • Created at, or near, the Dme of the event • Created by experienced a knowledgeable person
§ Reliability • Relied upon by the organizaDon in the regular course of business
§ Trustworthiness – not changed over Dme • Record’s content • Management process
PART 2: WHY IMAGES ARE ESSENTIAL FOR ACCESSING MANY TYPES OF INFORMATION
Ø An image is an array of very, very small black and white spots that collecGvely comprise a picture.
Ø Arrays create images in three ways:
§ Silver halides (exposed to light) are the black spots which comprise pictures (images) on film (microfilm)
§ Electronically charged parGcles are the black spots which comprise the pictures (images) created on paper business copiers.
§ Pixels (programmed to be black), are the picture elements which comprise digital images.
Ø Images are photographic or digital “pictures” of documents
Decade Type of Record Problem/Need Solution/Type of Image
1930’s Transaction records (checks)
• Capture transaction records (checks) at high-speed
16mm roll film
1940’s V-Mail • Maintain morale of WWII troops 16mm roll film
1950’s Engineering drawings
• Document the history of drawing revisions
• Reduce the cost of distributing drawings
Aperture cards
1960’s Computer reports • Produce computer generated reports faster on non-paper media
• Distribute born digital information at lower cost
Computer output microfilming (COM) microfiche
1970’s Financial statements – banking and investments
• Reduce/eliminate paper and shipping • Better integrity of stored records
Computer output microfilming (COM) microfiche
1980’s Case files – mortgages, policies, and projects
• Records have financial value – mortgages
• Speed of “turning” money (records)– mortgages
• Internet accessibility to centralized repositories of records
Optical Disk
1990’s Public Records – court, land, & archives
• Provide access to centralized repositories of records – via the internet
Magnetic Media
Your Takeaways – From Part 2
Ø Imaged copies are absolutely necessary to meet an ever-‐increasing business need:
Ø Many people at different locaDons having 24/7
access to the same informaDon.
PART 3: FOUR KEY LEGAL QUESTIONS REGARDING IMAGE COPIES OF “ORIGINAL” RECORDS
Q1. Are imaged copies of paper records considered the legal equivalent of
“original” records – and therefore are as admissible in evidence as the “original” paper record?
The answer is: “YES!”
Ø Federal & State Statutes
§ Uniform Photographic Copies of Business and Public Records Act
Ø Federal & State Case Law Ø Federal rules of Evidence Ø Federal & State RegulaDons Ø Federal & State Agencies – in their own operaDons
For Image Copies to be Admissible… The record must be made in the ordinary
course of business Ø The copy must be made in the regular course of business
Ø The copy must be made by a process which accurately reproduces or forms a durable medium for reproducing the original
Ø The copy must be saDsfactorily idenDfied
Ø Image copies are a “wriDng” under the Federal Rules of Evidence (FRE).
Ø Image copies have been deemed admissible in judicial rulings interpreDng the Federal Rules of Civil Procedure (FRCP).
Ø Electronic transacDonal records are explicitly deemed legally binding by the Federal government and certain states.
Your Takeaways – From Q1
Image copies are admissible as evidence pursuant to:
Ø The FRE and the FRCP Ø Federal and state statutes and regulaDons
Image copies of records therefore are rouDnely accepted as the legal equivalent of “original” paper records.
Q2. Are the Rules of Evidence admissibility requirements for image copies of paper records
a) more, b) less, or c) the same as the admissibility requirements for original paper records?
The answer is: “C -‐The SAME!”
Your Takeaways – From Q2
Image copies as well as original records typically have liZle or no problems overcoming the four possible evidenGary objecGons:
Ø Relevance Ø AuthenGcity Ø Hearsay Ø Trustworthiness
Q3. Aier paper records are imaged, is the image copy admissible in a legal proceeding in lieu of the “original” paper record?
The answer is: “YES!”
Your takeaway from Q3 Image copies are as admissible in evidence
as the original itself in any judicial or administraDve proceeding
regardless of whether the original is in existence or not
Federal Business Records Act (FRE)
-‐-‐-‐-‐-‐ The Uniform Photographic Copies of Business and Public Records
as Evidence Act (UPA)
Q4. Aier paper records are imaged (and those images are being retained in accordance with the organizaDon’s retenDon schedule for this type of record), is it legal to destroy the “original” paper record?
The answer is: “YES!”
Ø Records, no longer required in the regular course of business, can be destroyed Ø United States Supreme Court
Ø Image copies “are as admissible in evidence as the original itself in any judicial or administraDve proceeding regardless of whether the original is in existence or not” Ø Federal Business Records Act (FRE) Ø The Uniform Photographic Copies of Business and Public Records as Evidence Act (UPA)
Ø The records to be destroyed must not be subject to any “acDve” records hold order
Significant Case Law
• Andersen Decision (hZp://en.wikipedia.org/wiki/Arthur_Andersen_LLP_v._United_States)
• Lorraine Decision (hZp://en.wikipedia.org/wiki/Lorraine_v._Markel_American_Insurance_Co.)
• Bull v. United Parcel Service (hZp://www.lexology.com/library/detail.aspx?g=630e6a1b-‐8767-‐4bda-‐a323-‐59e917960521)
Your Takeaways – From Q4
There is a clear foundaGon in case law and statutory law.
YES imaged “original” paper records can be destroyed
in the regular course of business
The Answers to These Four QuesDons Provide the Facts
For Your OrganizaDon to Conclude:
ü Original and copied records are legally equivalent.
ü There is solid legal foundaDon for admijng records in courts and regulatory hearings.
ü Original paper records (that no longer have any
future business use) can be destroyed in the regular course of business.
PART 4: DEFENSIBLE DISPOSITION
Records DestrucDon Ø “Records DestrucDon” has been the popular term to
describe the process of destroying records by destroying the media (paper, microfilm, floppy disks, casseWe tapes etc.) on which the records were recorded.
Ø Records destrucDon is typically achieved by shredding, incineraDng, or other process resulDng in:
The highest probability there is no further accessibility
to the informaDon contained on the media.
Ø Records destrucDon includes deposiDng records in landfills.
Records DisposiDon vs. DestrucDon
Ø “Records DisposiGon” is now considered the best term to designate: § The end of a record’s useful life in the form that the record was created or received and
§ All legal and regulatory retenGon responsibiliGes have been met in advance of iniGaGng the disposiGon process.
Other DisposiDon Thoughts
Ø DisposiGon could include forwarding the informaGon to another “owner”, i.e. compliance forms.
Ø DisposiGon also could manifest transfer of ownership, i.e. returning checks.
Ø Media-‐centric records (paper, microfilm and removable magneGc media) are destroyed when the media (on which the record is stored) is destroyed.
ARMA/AIIM/Cohasset Survey Data re: disposiGon of imaged copies
Date 39
Source: Cohasset Associates | ARMA Interna3onal | AIIM 2013 | 2014 Informa3on Governance Benchmarking Survey – A Call for Moderniza3on. www.cohasset.com
44% 43%
13%
Paper Source copies are destroyed aier Successful capture as scanned images
Agree
Disagree
Don't know
Q: Why don’t organiza.ons destroy their original paper records
a>er they have been imaged?
Challenge: How should your organization make the process of destroying/disposing “original” paper records defensible in a subsequent legal proceeding – when the “original” record no longer exists? Answer: By a process that details and documents the processes associated with the specifics of the actual disposition/destruction of records:
What is Management Evidence?
• Management evidence is the collecGve term used to describe a mulGplicity of specific records (policies, procedures, logs, etc.) created for the purpose of documenGng the life-‐cycle process of how records are in fact managed.
• Management evidence should be created and retained in accordance with established policies and a prescribed retenGon.
The Role of Management Evidence in Defensible DisposiGon
Detailing goals, policies, & procedures • Providing logs of key acGviGes • DemonstraGng:
• Best pracGce – peer norm • Consistency of performance
• Providing the ability to later: • Determine who did what and when – accountability • Prove the negaGve
• Maintaining best pracGce standards through conGnuous process improvement
ManifesGng Defensible DisposiGon
Management evidence should manifest that the records destrucGon occurred:
• In the regular course of business • By experienced and authorized professionals, • In accordance with an up-‐to-‐date retenGon schedule,
• At or near the Gme designated in the retenGon schedule.
May 18-‐20, 2015, with a full day of pre-‐conference tutorials on May 17th.
www.MERconference.com Focused exclusively on the legal, technical, and
operaGonal issues associated with the management of electronic records -‐ from their creaGon to
disposiGon. – 15 legal/compliance sessions
– 14 aZorney speakers – 4 judges
THANK YOU!
FOR ADDITIONAL INFORMATION:
Robert F. Williams [email protected]
Hon. Ronald J. Hedges [email protected]