Can you use Digital Documents in Court As Evidence?

Technology and digitisation have pervaded into all areas of life, rendering several things obsolete. People now resort to using digital documents and e-copies, reducing the number of printed documents in circulation. With a rise in using electronic documents and digital contracts in place, legal questions arise as to whether these are admissible in court or not?

This article will detail what constitutes digital documents, which ones are admissible in court and what are the exceptions to the rule.

What is electronic evidence?

Electronic evidence is any information stored or transmitted in digital form. It applies to electronically generated documents as well as physical hard copy documents that are scanned and stored. All documents are stored electronically as well as documents stored by Internet service providers.

With technology being widespread and the sharing of material and documents, as well as contracts and meetings taking place online, the amount of electronic data in store has increased. Offices have replaced paper with digital documents for business communication.

The reduction in office spaces has prompted the digital sourcing, creation and storage of documents. With phones, tablets and laptops penetrating deeply into society, the need for carrying physical documents around has been greatly reduced.

Uniform Evidence Act

The Evidence Act in Australia details what documents are admissible in court. For a while, the paper has been the most common and widely accepted format of documentation. Following this thought, the only documents acceptable in court as evidence were paper copies i.e. the original document. Consequently, there were no provisions for the admissibility of digital documents. However, provisions to the Evidence Act have expanded the definition of documents.

For any document to be admissible today in court as evidence, a document needs to be

  • In any form; or
  • Which has been produced by a device, such as a scanned or digitised copy of records.

Digital and electronic evidence also includes text messages, emails, and chats conducted on social media sites as well as online transaction records. E-documents of contracts are also acceptable in court as evidence.

Authenticity and Security of Electronic document

A key concern with digital documents arose around the security and authenticity of these documents. With digital documents, it is important that the source and the origin of the documents can be traced. It is also important to know how many copies of the document exist, whether and how it has been circulated and who has access to the documents. Safe storage is also required for sensitive documents that need to be protected from the public eye.

All these concerns arise due to the possibility that digital documents can easily be forged. E-signatures can be copied onto forged documents, creating safety concerns regarding the use and storage of such sensitive information onto digital storage. Unquestionably, these concerns can also come up in court and may render your documents inadmissible.

To ensure the authenticity of the document, anyone who produces an electronic document in court needs to be careful of the following.

  1. They need to provide sufficient evidence regarding the documents coming into existence. This helps ensure that the documents were not tampered with during the time they reached the court.
  2. There needs to be no doubt regarding the fact that the documents have not been edited, altered or forged and that the original documents are being produced.
  3. Producers of digital evidence also need to ensure that their systems are reliable and there is no technical error that can lead to the documents being challenged.
  4. The identity of the author and all individuals who have access to the documents should not be in question.

Importance of keeping online records organised?

Business communication needs to be stored securely for legal purposes. With business communication being conducted solely on devices now with minimal paperwork, the storage and organisation of these documents for legal evidence are more important than ever.

The provisions of the Electronic Transactions Act allows digital documents to be stored and be admissible when meeting legal requirements. Previously, offices would have filed copies of the official documents and stored them.

Digital documents are now admissible in court, but it is imperative that businesses and organisations manage and store their documents in an organised manner. Archiving through technology is cost and space effective, and can be micro-organised, making the retrieval and security of documents easy and guaranteed. Several organisations have formulated document retention policies. These policies dictate the procedures of storing and archiving business communication and all documents that businesses are required to maintain by law.

Exceptions to Admissible Electronic Evidence

Provisions are increasingly made to accommodate different forms of digital and electronic evidence. However, some documents are still inadmissible in court if produced electronically. These include migration and citizenship documents.

The following documents also cannot be produced electronically:

  • Documents such as the statutory declaration, power of attorney, will trust and guardianship documents that require witnessing or endorsement in the form of ‘wet signatures.
  • Copies of original documents for verification or certification purposes.

Any documents which have been verified by seals or stamps cannot be produced electronically.

Business Records Evidence Exception

All electronic evidence submitted must be verified by a witness that can provide authenticity regarding the origin and contents of the documents. However, business records are an exception to the rule.

Business documents and records are admissible in court without requiring witnesses to guarantee authenticity. There are some pre-conditions to the rule such as

  • The documents must be created during the ordinary course of business i.e. through normal procedures.
  • The persons responsible for admitting the documents to the court must know the documents.

Hence, these conditions should be taken into account even during the data retention process archival organisation of business records that may need to be produced for legal purposes.

Key Takeaways

  • With the rise of technology and electronic means of communication and work, electronic evidence has been made admissible in Australian courts.
  • The production of electronic documents is subject to certain pre-conditions that verify the authenticity of documents and the sanctity of evidence produced in court. These are detailed by the Evidence Act and the Electronic Transactions Act.
  • For businesses, it is important to have a methodical and organised data policy in place to ensure the proper storage of business documents in line with legal conditions.

Looking for a lawyer?

Have you been involved in a commercial dispute and are unsure of what your options are? The legal experts and business lawyers at Lazarus Legal are ready to assist you. Our team consist of lawyers across a wide range of legal areas who will best guide you regarding what your options are and what your best course of action should be. Get in touch and leave the rest on us.

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Can you use Digital Documents in Court As Evidence?

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Barry Lazarus

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We’d be lying if we told you that this bloke isn’t the big honcho of our team, but his name is a dead give-away. The founder of Lazarus Legal, Barry is an old school, tough as nails lawyer. They don’t forge litigators like this anymore.

With decades of experience in both Australia and South Africa, his wisdom is as renowned as his name. Back in the days when Schwarzenegger and Van Damme were kicking ass on VHS, Barry was kicking ass in the courtroom. And after all these years, he still has a reputation for refusing to back down.Barry is definitely the badass you’d want in a fight – in court or otherwise. But really, he’s a big softie. Just don’t let him know you know that (although he probably won’t read this anyway – navigating the Internet is not his strong point).

Aside from putting other lawyers in their place, taking long walks on the beach and spending time with his family, Barry enjoys seeing others succeed. Not only is Barry a staunch and unmoving litigator, he has sharp business and commercial acumen having started up ventures from scratch and growing them into full-blown franchises – from real estate to creating ice cream, to making pasta. With his experience on both sides of the commercial and legal equation, you want this guy to be on your side, whether you’re the next Zuckerberg realising your genius, or the next Zuckerberg taking on your opponents in court.

When Barry is not busy lawyering about, he is a part-time lawn bowler and a wannabe comedian, but never took both as a day job, because let’s face it, he’s a lot better at his day job.

If someone ever threatens you to lawyer up…relax, call Barry and he’ll handle the rest. 

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Mark Lazarus

Director

mark@lazaruslegal.com.au 

The visionary behind the business and the fresh blood of the Lazarus Legal team, Mark (or Laz as he is often known) owes much of his success to his past stories and experiences. And he’s made it his personal goal to bring that wisdom and formula to the firm.

He’s a bit of jet setter, splitting his time between Australia and the UK, maximising every hour of his professional life. He thrives on this adrenalin. It allowed him to work in private practice in Sydney, act for a host of famous celebrities in London, do a two year stint as a NSW barrister (and not the pretentious coffee type in the Melbourne laneways) and more recently did a gig as the Legal Director covering Europe, the Middle East and Africa for one of the world’s coolest fast-moving consumer good brands!  

As an Aussie and UK lawyer and former barrister, Mark not only has the gift of the gab but he’ll walk the walk to prove it too. He likes to think he’s a bit like Harvey Specter or Michael Corleone, the main difference is you can actually retain him as your lawyer and consigliere. He’ll tell you how it really is and will take on any challenge head on. Although litigation and court advocacy comes naturally to him, commercial and IP is what gets his blood pumping! 

When Mark is not out there doing his thing, you will probably catch him chilling at home with his family, on the sidelines of the soccer (football) pitch cheering on his two boys, crawling through mud obstacles, or training hard at the gym. Passion and commitment is what drives Mark to succeed, along with his burning desire to disrupt the legal profession by finding new ways to change the game.

He has sights on the future. So if you’re breaking new ground, ahead of the times, and on the verge of something big, but you need someone who’s got your back and who can give you straight up advice, this is the guy you will want on speed dial.

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