Earlier this year, I made a real spring-cleaning. I mean a down and dirty grass-roots effort to digitally archive just about everything in my life. And, as a result, I triple-backed-up not just my image archive, but also my file cabinet. Sketchbooks, business cards, and seminar notes, old tax returns, contracts, and model/property releases. Ten years of work in lifestyle photography meant that I was now escaping a death-by-paperwork.
But was I going to get caught by legal issues down the road? Would digital copies of my critical original documents be acceptable should I ever need them in a court of law? I employed the expert advice of my attorney, Robert Steckman in New York.
Mr. Steckman advised me that scanning and “destroying” my originals was acceptable as long as I was aware of the “Best Evidence” rule. We should note that my scans were going to be high-res and easily printable: 300ppi at 100% full size, in color, and saved as PDFs.
“There is a general provision of evidence law called the “Best Evidence” rule which requires you to provide the best copy available. See http://www.yourdictionary.com/law/best-evidence-rule Under this rule, copies are accepted if an original is not available, but if the original exists, then you can’t use the copy. You need to apply the document destruction rule consistently in your practices, or else it may fail the ‘smell test’ (ex. why do you keep copies of model agreements, but not license agreements). Many people keep originals for about 6-18 months, then scan and destroy the original. If you scan a certain type of document, make sure that each and every one of those type documents are scanned. Consistency is rewarded, and any inconsistency must be explained in detail.”
I then asked, “what about later potential claims that my scanned document copies had been digitally altered?”
Mr. Steckman replied, “The Court rule is that nothing is excluded simply due to the fact that it is a copy. Original or copy, the party submitting the document always has the burden to prove its authenticity. Also keep in mind that there are different rules of evidence in different courts. Federal Courts have recently changed the rules of evidence on this issue, but every state court is different. The best evidence rule is generally applicable in all courts, state and federal, but every judge also has the discretion to rule as they see fit when these matters are at issue. The best advice is have a good reason to destroy originals, and to destroy them only according to a consistent policy (i.e. after 1 year).”
And then, I had my last question, “some of my stock agency contracts specify that I maintain an original release on file; would a digital-only copy be a violation of my contract?”
“It depends on the language of the contract, but as before, the “Best Evidence rule” would still apply in any Court. Nevertheless, if the contract contacted an absolute, indisputable clause where you made a representation you would keep the original copy, then some judges might enforce the exact terms of the agreement. Nevertheless, most judges know that people can’t keep papers forever (or at least until the statute of limitations ends on all possible claims). “
Mr. Steckman also strongly suggested that I review this article for additional discussion of how the traditional ‘best evidence rule’ works in connection with the new E-Discovery requirements in Federal Courts: http://www.law.com/jsp/article.jsp?id=1202424535933 ”
Anyone dealing with this?