Re: Problems With Moving To Electronic Records?

Texas has essentially the same rule (even has the same number).  Texas
and, perhaps the Feds (don't have a copy of the fed's rules of
evidence), includes the following definitions:

1001 Definitions

(a) Writing and Recordings

    "Writings" and "recordings" consist of letters, words, or numbers
    or their equivalent, set down by handwriting, typewriting,
    printing, Photostatting, photographing, magnetic impulse or
    electronic recording, or other form of data compilation.

(b) Photographs.  ....

(c) Original

    An "original" of a writing or recording is the writing or
    recording itself or any counterpart intended to have the same
    effect by a person executing or issuing it.  An "original" of a
    photograph ...  If data are stored in a computer or similar
    device, any print-out or other output readable by sight, shown to
    reflect the data accurately, is an "original."

(d) Duplicates ...

So it appears that a print out of a scan should be treated as an
original if you can show that it reflects the data accurately.  Thus,
it appears from Rule 1002 - to prove the content of a writing,
recording, or photograph, the original is required except as otherwise
provided in these rules or by law - you need only prove the print-out
and wait to see if the opponent can find an "otherwise" that is a
"gotcha" (you may want to research this:) and Rule 1003 is never
reached.  I try to never rely on rule 1003 because it is far too easy
to raise "a genuine question" of the duplicate's authenticity.

Personally, I can't image any thing that is more prone to fraudulent
modification than electronic images. So the courts have balanced "ease
of use" versus "ease of fraudulent modification" heavily in favor of
"ease of use."

Question: How does one prove a scanned image?  Does someone who
actually saw the original have to testify?  What about the person who
actually scanned the document?  What about the people who manage the
computer system?  How safe are the documents?  If there has been a
crash since storage, must the people responsible for the backups
testify?  Would a valid encryption system reduce the number of people
who would need to testify to prove that the data stored on the
computer and hence printed-out is an accurate image of the form.

One thing's for certain, I think, the courts haven't heard the last of
this issue. 

Bobby

--On Tue, 13 Jul 2004 09:59:19 -0400, "Stuart Levine" <[email protected]> said:

  SL> Jerry: Take a look at Rule 1003 of the Federal Rules of
  SL> Evidence, which provides as follows:

  SL> Rule 1003. Admissibility of Duplicates

  SL> A duplicate is admissible to the same extent as an original
  SL> unless
  SL> (1) a genuine question is raised as to the authenticity of the
  SL>     original
  SL> or (2) in the circumstances it would be unfair to admit the
  SL> duplicate in lieu of the original.

  SL> Obviously, there may be a problem with admissibility in state
  SL> proceedings if the state in question retains the traditional
  SL> rule.  My sense is that most states have jettisoned the
  SL> traditional rule and have adopted something like Rule 1003.

  SL> Of course, I'm a tax and business lawyer, so what do I know.

  SL> On 13 Jul 2004 at 12:16, Jerry Lawson wrote:

  >> I'm advising a financial organization that plans to scan in paper
  >> loan files and convert them all (except the initial signed
  >> application) to PDFs.
  >>
  >> Does anyone have any experience with the legal ramifications that
  >> could arise from this?  For example, would we have problems with
  >> using the PDF files as evidence in fraud prosecutions?
  >>
  >> Where could I learn more about these issues?
  >>
  >> Jerry Lawson http://www.netlawblog.com
  >>
  >>
  >>
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  >> There is a read/write Web page with resources that will be linked
  >> there and used during the Seminar on PDFs for lawyers and legal
  >> applications:
  >>
  >> http://Network-Lawyers.org/PDFLinks
  >>
  >> -/-/-/-/-/
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  >>
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  SL> ******************************************** Stuart Levine
  SL> Fisher & Winner, LLP 315 North Charles Street Baltimore,
  SL> Maryland 21201 Telephone: 410.385.2000 Telecopier: 443.927.7075
  SL> Cellphone: 410.802.5817 Weblog: http://taxbiz.blogspot.com
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  SL> *********************************************




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  SL> There is a read/write Web page with resources that will be
  SL> linked there and used during the Seminar on PDFs for lawyers and
  SL> legal applications:

  SL> http://Network-Lawyers.org/PDFLinks

  SL> -/-/-/-/-/


 
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There is a read/write Web page with resources that will be linked there and used during the Seminar on PDFs for lawyers and legal applications:

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