The legality of Scanned documents

The basis of what documents are admissable in court is the 'best evidence' rule. The best evidence rule is that no evidence is ORDINARILY admissable to prove the contents of a document except the original document itself.

The exception to the rule is that on proof, inter alia, of the destruction of the document the contents of the document may be proved by secondary evidence.

As long as the destruction of the document is done in the way of ordinary business, e.g. you receive a document, scan it into a scanning archival system, and then destroy the original, then the scanned image SHOULD be admissable in court. Remember that Faxes received directly into a computer are actually scanned documents.

It seems likely that the courts would only decline to accept the scanned document if it appears that the document was destroyed in contemplation of legal proceedings. The court cases referred to below were in respect of microfilmed documents. Since there is not a major difference between microfilmed documents and scanned(faxed) documents it would appear that the ruling would apply to scanned documents as well. There has been no court case covering the subject in the 25 years that faxing has been in operation it would therefore appear reasonable that the ruling would apply to scanned and faxed documents as well.
Case Referral - Barclays Western Bank v Creser 1982 SA104 (T) 106 Judge: Eloff J.
In commentary Wigmore on Evidence vol4 ara 1199 at 354 and 355 says:

'The view now generally accepted is that destruction in the ordinary course of business is sufficient to allow the contents to be shown as in other cases of loss'

Refer also case Barker v Wilson (1980) 2 All ER 8
In that case the following was said by Caulfield J

' The magistrates came to their conclusion and they put their conclusion in these terms, that they adopted some robust common sense that s9 does not include microfilm (and this would apply to other digital storage) which is a modern process of producing bank records.
It is probable that no modern bank in this country now maintains the old-fashioned books which we maintained at the passing of the 1879 act, and possibly maintained for many years after 1879'

There is no reason therefore that as long as a company has a system of methodically storing documents electronically, and then destroying the original, why these documents would not be admissable as secondary evidence.



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