VIC Legal Issues with Converting Paper Files to Electronic Files?

[Rod]

Hi guys,

Are there any legal issues when a law firm converts clients' paper files to electronic files?

I am aware wills may be an issue, but are there any legal issues that need to be addressed as far as being able to use any of the new electronic files as evidence in court?

Does type of file matter? I'm thinking PDF file formats but unclear if making the PDFs text searchable is an issue for courts.

No need to discuss storage issues (e.g. security of data, cloud storage, backups etc).

And no, this is not a homework question.

 

[Rob Legat - SBPL]

Some things just don't translate to paperless, yet. My firm is paperless to the extent possible, which I'd estimate is about 80%.

Each jurisdiction has different requirements on electronic transactions, but some things are pretty universal in requiring 'hard' format: land contracts, deeds, declarations/affidavits, wills, powers of attorney... basically anything that has a witnessing component.

I don't have much litigation experience, but I think the Federal Court is one of the leaders in terms of electronic evidence (but I haven't used it). Some Registries are better than others in terms of filing. For example, NSW has an online Registry, Queensland has a restricted ability to file certain documents online through a third party provider.

 

[Rod]

Thanks for the reply.

re: Documents requiring signatures. Once the formalities have been completed are there any legal issues converting the document to an electronic format and then shredding the paper originals?

 

[Rob Legat - SBPL]

It depends on the document, who 'owns' it and the attitude towards it.

For example, in my office: Any stamp duty forms must be kept in hard copy format as they belong to the Office of State Revenue. Any Titles Office form I lodge electronically must be kept as originals until I'm told to destroy them, and then they must be destroyed. Any deeds, declarations or affidavits must be kept as hard copies. Correspondence and file notes are scanned and shredded. If it's something that's likely to be contentious (ie evidentiary), it's kept as a hard copy unless its primary form is electronic.

 

[Rod]

Any deeds, declarations or affidavits must be kept as hard copies.

Is this a legal requirement or just sensible business practice 'in case something goes wrong somewhere'? Curious as to why an electronic copy can't do the job. Is it because in some circumstances you may want to check whether the same pen was used?

 

[Rob Legat - SBPL]

My understanding is that the various electronic transactions acts don't accommodate these documents (yet). And most courts will require originals to be filed - which would get them out of the in any case. In terms of deeds, for example trust deeds, the original is required for production at various times, and you cannot legally certify a true and correct copy without sighting the original.

Plus the, as you say, 'in case something goes wrong somewhere' angle. However, generally speaking, the documents go one of three places: to the client, into safe keeping, or into the shredder.

 

[Rod]

Thanks for the information.