By James W. Martin
So, you scanned all the papers in those client files of yours, converting them into electronic files on your computer, and now you wonder if you can shred all that paper. You think of the savings in office space rent and closed box storage fees. But, the lawyer in you quickly points out your files are the best evidence of the work you did and are the business records you maintained contemporaneously with doing the work. If you ever needed to defend your work in court, would the electronic files be admissible?
Definition of Writing
The lawyer in me began research in the Florida Statutes and found that the Florida Legislature got to the digital age before I did:
“1.01 Definitions. In construing these statutes and each and every word, phrase, or part hereof, where the context will permit…[t]he word ‘writing’ includes handwriting, printing, typewriting, and all other methods and means of forming letters and characters upon paper, stone, wood, or other materials. The word ‘writing’ also includes information which is created or stored in any electronic medium and is retrievable in perceivable form.” F.S. §1.01(4).
Well, that must mean whatever is stored on my computer is a “writing” as long as I can print it out. That’s a pretty handy definition. I’ll have to remember that one. Wherever the word “writing” appears in the Florida Statutes, replace it with the phrase “computer file.”
Florida Evidence Code
But, does the Florida Evidence Code agree? Yes, the best evidence rule says: “If data are stored in a computer or similar device, any printout or other output readable by sight and shown to reflect the data accurately is an ‘original.’” F.S. §90.951(3). And the hearsay rule provides for this business records exception:
“A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness. The term ‘business’ as used in this paragraph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.” F.S. §90.803(6)(a).
Even though these statutes quite clearly state that my printable computer files are writings and originals, the lawyer in me asks if there is any case law construing these statutes to the contrary. A quick Westlaw search of Florida Statutes Annotated and Florida Cases finds none, but unearths proof that the courts are living in the same electronic world as the rest of us:
“Today, instead of filing cabinets filled with paper documents, computers store bytes of information in an ‘electronic filing cabinet.’ Information from that cabinet can be extracted, just as one would look in the filing cabinet for the correct file containing the information being sought.” Menke v. Broward County School Board, 916 So. 2d 8 (Fla. 4th DCA 2005), denying “unfettered access” to computer files in discovery.
“This is an exceedingly important issue which should be confronted by this court. Businesses as well as individuals must have regular record and property disposition policies. Obviously, storage space, both in warehouses and in computers, have finite limits.” Martino v. Wal-Mart Stores, Inc., 908 So. 2d 342 (Fla. 2005), concurring opinion ruling there is no independent cause of action for spoliation of evidence.
So what does Google say about this? I enter this search: Are files scanned to electronic computer files admissible as evidence? The first hit is EPA’s Office of Solid Waste’s Interpretation and Findings Regarding Safety-Kleen Corp.’s Automated Manifest Record Storage System” (www.epa.gov/epaoswer/hazwaste/gener/manifest/enclose.htm) in which the EPA found that it was “satisfied that Safety-Kleen’s image file storage system meets current RCRA requirements for retention of copies bearing the handwritten signatures of waste handlers.” The federal environmental law known as RCRA required that “signed” manifest copies be retained and bear the handwritten signatures of the waste generator. The EPA said:
“The key regulatory compliance issue presented by Safety-Kleen’s system is whether the electronically stored image files are created and maintained in such a manner that they qualify as ‘copies’ bearing the necessary ‘handwritten’ signatures. We conclude that the image files meet this standard, because:
“1. The handwritten signatures from the hard copy records are captured by the scanner, incorporated into the stored image files, and reproduced accurately in the output generated by the computer system. Safety-Kleen demonstrated to EPA that the output displays signatures that look no different than the signatures that initially appeared on the scanned hard copies, and the reproduced manifest copies (and signatures) are of the same or better quality than those which are produced by photocopy machines or fax machines. Significantly, this system does not attempt to substitute ‘digital signatures,’ PIN Numbers, or other electronic surrogates for the original handwritten signatures.
“2. The image files appear to meet the standards included in the Federal Rules of Evidence for the admission of copies and computer generated records into evidence in judicial proceedings brought in the federal courts. We believe that the law of evidence provides the proper standard for determining whether these electronic documents (the image files and any printouts generated by the system) are acceptable ‘copies’ within the meaning of our manifest retention regulations. The regulations require these manifest copies to be retained in order that they may be inspected by RCRA inspectors, and in a proper case, admitted in evidence in RCRA enforcement proceedings or other proceedings (e.g., CERCLA liability) where the information on the manifests may be considered relevant. Thus, their acceptability as inspectable records and possible evidence should be evaluated according to the law of evidence on the admissibility of computer generated records.”
Well, if it’s good enough for the EPA, it’s probably good enough for a lot of other government agencies. What does IRS say? It recognizes “electronic storage systems” as the records required to be maintained by the Internal Revenue Code.
It even issued guidance in the form of Rev. Proc. 97-22, which goes into great detail concerning the components the system must include, such as “ensure an accurate and complete transfer of the hardcopy or computerized books and records to an electronic storage media, . . . index, store, preserve, retrieve, and reproduce the electronically stored books and records, . . . include reasonable controls to ensure the integrity, accuracy, and reliability of the electronic storage system; . . . reasonable controls to prevent and detect the unauthorized creation of, addition to, alteration of, deletion of, or deterioration of electronically stored books and records . . . .”
So, if a soul was brave enough, one could even scan digital images of items of income, deduction, and other tax records then shred all that paper, too. If one were brave enough. I think I would scan and shred the EPA waste manifests first, though.
James W. Martin is a probate, real estate, and corporate lawyer in St. Petersburg, who has written for The Florida Bar Journal & News, ALI-ABA Practical Lawyer, and West Publishing, and has more information on his Web site, www.jamesmartinpa.com.