When Are Originals Required?
Stipulations regarding retention of documents rarely distinguish between paper and electronic records, or originals and copies. Most countries, however, have other rules that require retaining some documents such as board minutes, documents under seal, and documents under court proceedings in their original form. Some countries recognize electronic or scanned versions as legal documents.
The US Federal Rule of Evidence requires presenting original documents during the course of litigation whenever possible. Many states have adopted the Uniform Photographic Copies of Business and Public Records as Evidence Act that gives microfilm copies the same legal status as original records, but the law would still require original documents when authenticity might be an issue. Duplicate records such as photocopies do not attain the legal status of originals or microfilm.
As a rule of thumb, companies need to preserve the following documents in the original:
- Employment contracts and contracts for personal services.
- Contracts or agreements related to major transactions.
- Opinions of counsel.
- Correspondence having a clear effect on the company’s legal rights or obligations.
- Promissory notes.
- Title deeds and lease.
- Court orders affecting title.
- Probate proceedings.
For other documents, when rules on retaining periods do not distinguish between hard copy, microfilm and records in other formats, originals may be destroyed after imaging and storing them electronically. The company, however, needs to ensure reasonable controls to demonstrate the integrity and authenticity of such electronic documents.
Most original documents such as title deeds and insurance policies require permanent or long-term storage. Make sure to ensure proper safeguards such as fire and water proof lockers when preserving such documents. A good method of storing electronic records is WORM (write once, read many) format.