Because of the enormous costs associated with the storage of documents, organizations have begun scanning documents and destroying the originals. Indeed, the scanner is rapidly becoming the modern day photocopier. However, the effect of scanning on the admissibility of documents in future litigation is not always considered. Who wants to think about a lawsuit that may never exist? The treatment of scanned originals by the courts is anything but clear. For that reason, attorneys must ensure that their clients take every possible measure to guarantee that they can admit reproductions of scanned documents into evidence as originals in the event of future litigation.
Part II of this Article will explain the legal concerns associated with the introduction into evidence of reproductions of scanned documents. Part III of this Article will then describe the practical concerns of implementing such a program. Finally, the Appendix provides a model for documentation of a company's document destruction program-the Preface to Document Preservation Program.
II. The Law
Federal and state courts have their own sets of evidentiary rules and statutes. Thus, the avenue for introducing reproductions of scanned documents into evidence as originals will depend upon whether the company's case is in federal or state court.
A. Federal Law
Under the "Best Evidence Rule," parties must introduce into evidence original documents in order to provide the contents of those documents. However, no original document is required if allowed pursuant to an Act of Congress or the rules of evidence.
1. The Federal "Best Evidence Rule. "-Historically, the law has preferred parties to introduce original documents to prove what those documents say.' Sometimes a writing is an ultimate fact that an attorney needs to prove at trial, such as "the terms of a contract, the boundaries contained in a deed [or] the defamatory statement in a letter. "2 For that reason, under the Federal Rules of Evidence, "[t]o prove the content of a writing . . . the original writing . . . is required, except as otherwise provided in these rules or by Act of Congress."3 This rule is generally known as the "Best Evidence Rule," but some commentators also refer to it as the "Original Writing Rule. "4
The Best Evidence Rule makes sure that the judge or jury deciding a case can examine the actual document, rather than a description of the document provided by a witness that might be selfserving or biased.5 When the Rule was originally enacted, the methods of copying documents were susceptible to human error. Thus, the Rule also serves to prevent the admission of erroneously duplicated documents into evidence,6 as well as to prevent fraudulent duplication.
The Best Evidence Rule does not apply, however, when a document is introduced into evidence for some reason other than to prove its contents.7 For example, an attorney might want to prove that a contract exists, not necessarily the contents of the contract itself. In this circumstance, the Best Evidence Rule would not apply.
Since the Federal Rules of Evidence require an attorney to sometimes produce the original, the definition of "original" in the Federal Rules of Evidence is important. "Original" is defined as follows:
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 includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."8
Because there are no cases specifically addressing the interplay between the Best Evidence Rule and reproductions of scanned documents, there are no cases holding that reproductions of scanned originals qualify as originals under Rule 1001. …