NOTES. Cohasset Associates, Inc Managing Electronic Records Conference 24.1

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1 S24. An Up-to-Date Answer To a Long-Standing Question: Can Paper Records - Which Have Been Imaged - Be Legally Destroyed? Robert F. Williams Hon. Ronald J. Hedges #MER15 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 2015 Managing Electronic Records Conference 24.1

2 Robert F. Williams Cohasset Associates, Inc. President, Cohasset Associates, Inc years Co-chair, National Conference on Managing Electronic Records - 22 years Executive Editor, Cohasset s legal research white papers - 10 years Editor of the Cohasset s definitive legal research studies: Legality of Microfilm Legality of Optical Storage Legality of Digital Image Copies of Paper Records Publisher, Authentic Electronic Records: Strategies for Long-Term Access Renowned expert on the legality of non-paper records storage media and the disposition of original paper records: presentations - United States, Europe, & South America Admitted to the Company of Fellows: AIIM International and ARMA International Recipient of the Award of Merritt: ARMA International 1983 and AIIM International Recipient of the Emmett Leahy Award Recipient of the AIIM Education Award williams@cohasset.com Hon. Ronald J. Hedges Ronald J. Hedges, LLC United States Magistrate Judge, District of New Jersey, Member, Sedona Conference Advisory Board Coeditor, Sedona Conference Cooperation Proclamation: Resources for the Judiciary (all editions) Coauthor, Managing Discovery of Electronic Information: A Pocket Guide for Judges (Federal Judicial Center) (both editions) r_hedges@live.com Is NOT About Are records and image copies of records legally admissible in a legal proceeding? Long-standing issue: Admissibility in Evidence of Microfilm Records Eastman Kodak Legality of Microfilm Cohasset Associates Legality of Optical Storage Cohasset Associates This Session Is ALL About Can your organization legally destroy images paper records? Relatively new issue driven by: Storage costs everincreasing volume of retained records Legal discovery costs exponentially greater volume of e- records 2015 Managing Electronic Records Conference 24.2

3 Cohasset s White Paper of the Legality of Digital Image Copies of Paper Records For additional information about the legality of digital image records and copies, please reference the 27 page White Paper Cohasset prepared for IBM on this subject. Part 1 P Why Organizations Have Records Records Are The Result Of Growth in the volume of business/government Overwhelming human ability to accurately retrieve needed information Employee turnover Critically impairing the accuracy and timeliness of retrieving relevant details of past events Increasingly complex business practices Resulting in fractionalizing employee information knowledge 2015 Managing Electronic Records Conference 24.3

4 Records Are Important Because Records are recognized as the most trustworthy evidence of an organization s transactions, processes and decisions Records inherently manifest: Respected accuracy Needed detail and Completeness Records Are Important Because Records are always important in determining the outcomes of disputes Records are essential to proving the negative and thereby achieving regulatory compliance Records facilitate the functioning of all aspects of commerce and government Records Are a Business Asset Like other business assets, (money, people, materials, facilities, etc.) records must be managed in accordance with a utility lifecycle Records must be retained as long as they are needed When records are no longer needed, they should be disposed of in the regular course of the business s activities Managing Electronic Records Conference 24.4

5 Part 2 Why Images Are Essential For Accessing Many types of records What Are Images? An image is an array of very, very small black and white spots that collectively comprise a picture. Arrays create images in three ways: Silver halides (exposed to light) are the black spots which comprise pictures (images) on film (microfilm) Electronically charged particles 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. 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 1970 s Financial statements banking and investments Reduce/eliminate paper and shipping Better integrity of stored records Computer output microfilming (COM) microfiche Computer output microfilming (COM) microfiche 1980 s Case files mortgages, policies, and projects 1990 s Public Records court, land, & archives Records have financial value mortgages Speed of turning money (records) mortgages Internet accessibility to centralized repositories of records Provide access to centralized repositories of records via the internet Optical Disk Magnetic Media 2015 Managing Electronic Records Conference 24.5

6 Part 3 Four questions on the legal acceptance of image copies - created from original paper records Q1. Are image 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! Federal & State Statutes Uniform Photographic Copies of Business and Public Records Act Federal & State Case Law Federal Rules of Evidence Federal & State Regulations Federal & State Agencies in their own operations For an Image Copy of a Record To Be Admissible The original record must have been made in the regular course of business The image copy must have been made in the regular course of business The image copy must have been made by a process which accurately reproduces or forms a durable medium for reproducing the original The image copy must have been satisfactorily identified 2015 Managing Electronic Records Conference 24.6

7 Image copies are a writing under the Federal Rules of Evidence (FRE). Image copies have been deemed admissible in judicial rulings interpreting the Federal Rules of Civil Procedure (FRCP). Electronic transactional 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: The FRE and the FRCP Federal and state statutes and regulations Extensive Federal and state case law Image copies of records therefore are routinely accepted as the legal equivalent of original paper records. Q2. Are the admissibility requirements in the Rules of Evidence 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! 2015 Managing Electronic Records Conference 24.7

8 Your Takeaways from Q2 Image copies as well as original records typically have little or no problems overcoming the four possible evidentiary objections: Relevance Authenticity Hearsay Trustworthiness Q3. After paper records are imaged, are the image copies 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 administrative 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) 2015 Managing Electronic Records Conference 24.8

9 Q4. After paper records are imaged (and those images are being retained in accordance with the organization s retention schedule for this type of record), is it legal to destroy the original paper record? The answer is: YES! Records, no longer required in the regular course of business, can be destroyed United States Supreme Court Federal Business Records Act (FRE) The Uniform Photographic Copies of Business Public Records as Evidence Act (UPA) Image copies are as admissible in evidence as the original itself in any judicial or administrative proceeding regardless of whether the original is in existence or not The records to be destroyed must not be subject to any active records hold order Significant Case Law Andersen Decision ( Lorraine Decision ( erican_insurance_co.) Bull v. United Parcel Service ( 630e6a1b bda-a323-59e ) 2015 Managing Electronic Records Conference 24.9

10 Your Takeaways from Q4 YES - imaged original paper records can be destroyed in the regular course of business There is a clear foundation in case law and statutory law. The Answers to These Four Questions Provide your Organization with the Facts For Your Organization to Conclude: Original and copied records are legally equivalent. There is solid legal foundation for admitting records in courts and regulatory hearings. Original paper records (that no longer have any future business use) can be destroyed in the regular course of business. Part 4: BTW: Defensible Disposition 2015 Managing Electronic Records Conference 24.10

11 Records Destruction Records Destruction has been the popular term to describe the process of destroying records by destroying the media (paper, microfilm, floppy disks, cassette tapes etc.) on which the records were recorded. Records destruction typically is achieved by shredding, incinerating, or other process resulting in: The highest probability there is no further accessibility to the information contained on the media. Records destruction includes depositing records in landfills. Records Disposition vs. Records Destruction Records Disposition is considered the best term to designate: The end of a record s useful life (in the form the record was created or received) and All legal and regulatory retention responsibilities have been met before the disposition process is initiated. ARMA/AIIM/Cohasset Survey Data re: disposition of imaged copies Paper Source copies are destroyed after Successful capture as scanned images Agree 13% Disagree 43% 44% Don't know Source: Cohasset Associates ARMA International AIIM Information Governance Benchmarking Survey A Call for Modernization. Date Managing Electronic Records Conference 24.11

12 Q: Why organizations do not destroy their original paper records after they have been imaged? Challenge: How should organizations make the process of destroying/disposing original paper records defensible in a subsequent legal proceeding when the original records no longer exists? Resolution: By management evidence - creating and retaining a summary report detailing which original paper records were disposed / destroyed by whom, when, how and by what authority. What is Management Evidence? Management evidence is the collective term used to: describe a multiplicity of specific records (policies, procedures, logs, etc.) created for the purpose of documenting the lifecycle process of how records are in fact managed. Management evidence should be created and retained in accordance with established policies and a prescribed retention Managing Electronic Records Conference 24.12

13 The Role of Management Evidence in Defensible Disposition Detailing goals, policies, & procedures Providing logs of key activities Demonstrating: Best practice peer norm Consistency of performance Providing the ability to later: Determine who did what and when accountability Prove the negative Maintaining best practice standards through continuous process improvement Manifesting Defensible Disposition Management evidence should manifest specific operational details regarding the process by which records were destroyed. Specifically, the destruction was done: In the regular course of business By experienced and authorized professionals, In accordance with an up-to-date retention schedule, At or near the time designated in the retention schedule. Your Questions Are VERY Important! We want to answer YOUR questions NOW 2015 Managing Electronic Records Conference 24.13

14 Thank you! For additional information: Robert F. Williams Hon. Ronald J. Hedges 2015 Managing Electronic Records Conference 24.14