Monday, April 23, 2012

A Decision in 1949 Could Have Destroyed Electronic Document Management

1949 was an eventful year. The Soviets exploded their first atomic bomb, and the cold war was on in earnest.

And a group of men met in St. Louis, Missouri.

Both events changed the world.

During the week of Monday, August 29, 1949 a group of twelve men gathered for six days during the fifty-eighth annual meeting of the National Conference of Commissioners on Uniform State Laws. On the table were the federal case of United States v. Manton and the Illinois case of People v. Wells. Each case dealt with whether facsimiles of checks could be used as primary evidence in a court of law. Whereas the federal court was happy to consider a facsimile check produced from microfilm the legal equivalent of the original paper check, the court in the Great State of Illinois was reticent.

The federal court argued thusly:

Their accuracy is not questioned. They represent in the course of a year, perhaps a million transactions. No one at all familiar with bank routine would hesitate to accept them as practically conclusive evidence. As proof of payment they constitute not secondary but primary evidence.

The point of the federal court was that as long as an imaged (photographic) reproduction of a check exists, there is no requirement to produce the original – even if it still exists. The photographic reproduction is, in fact, legally equal to the original paper.

On the other hand, Illinois was not convinced. The Illinois court argued the other side:

We have no such legislative authority in this state which would support holding facsimiles of checks as being the best evidence or primary proof.

The question then presents itself as to the rules of evidence in this state as to the admissibility of photographic representation of writings … and we find such photographic representation should be excluded if the original document is produced, or is obtainable, on the ground that it is secondary evidence.

So. There you have it. The court in Illinois considered photographic reproductions legally inferior (secondary) to the original. The implication was that businesses would be wise to always preserve the original document because it, and only it, could serve as primary evidence in a legal dispute. Reproductions just wouldn’t do. In fact, in some states, the intentional destruction of an original document actually prevented the use of any reproduction as secondary evidence!

The federal and state courts were at loggerheads on this issue. Worse, none of the 48 states (at the time) were in agreement as to how to treat photographic reproductions, and several states had actually withheld legislation as they waited for a uniform code.

A legal mess of national (and global) proportions was in the works. Evidence in one state might not serve in another (affecting interstate transactions), or may be in direct conflict with federal law.

Recognizing the importance of the issue, and the legal need to bring national uniformity to the treatment of photographic reproductions of documents, the commissioners met during a warm summer in St. Louis.

Six days later they had changed the world, and paved the way for electronic document management.

Be it enacted!

Here’s what the conference recommended to be enacted by each state. It’s called the “Uniform Photographic Copies of Business and Public Records as Evidence Act” (UPA):

If any business, institution, member of a profession or calling, or any department or agency of government, in the regular course of business or activity has kept or recorded any memorandum, writing, entry, print, representation or combination thereof, of any act, transaction, occurrence or event, and in the regular course of business has caused any or all of the same to be recorded, copied or reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic, or other process which accurately reproduces or forms a durable medium for so reproducing the original, the original may be destroyed in the regular course of business unless held in a custodial or fiduciary capacity or unless its preservation is required by law. Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial or administrative proceeding whether the original is in existence or not….

That recommendation eventually became a legal imperative and helped lay the foundation for today’s use of electronic documents without fear of violating the law or destroying legal evidence.

It actually took a while for the federal government to formally adopt essentially identical rules, but they finally did so in 1974 with the Federal Rules of Evidence (FRE) and in 1975 with the state-level Uniform Rules of Evidence (URE). By 1995 46 states had adopted either the URE or the UPA: only Illinois (unsurprisingly), Mississippi, Missouri (ironically) and Louisiana had not.

The federal government has taken further steps to validate the use of document images in place of document paper. The “Government Paperwork Elimination Act” goes a long way in attempting to eliminate the dominance of paper forms and documents. In fact it goes further. It also eliminates the need of a physical signature by allowing for legally recognized electronic signatures.

Here’s where the rubber meets the road:

Electronic records submitted or maintained in accordance with procedures developed under this title, or electronic signatures or other forms of electronic authentication used in accordance with such procedures, shall not be denied legal effect, validity, or enforceability because such records are in electronic form.


Current laws regarding the use of electronic documents do not mean that all original documents can be immediately destroyed once they are imaged. Some original paper documents (like car titles for some states) must be preserved for some term. It is up to you to know federal and state laws and which paper documents are affected.


A lot has changed since 1949. The Soviet Union is “in the dust bin of history” and the nuclear arms race has slowed to a comparative crawl. Also, a large portion of commerce and transactions worldwide are now done electronically, without a permanent dependence on paper.

Sixty-three years ago twelve people, meeting together over a thorny and difficult problem, acting as a sort of jury deliberating on our behalf, weighed the evidence and decided that paper was not supreme. Today you and I reap the benefits of electronic document storage and management because of their efforts.