Moves are being made by professionals to increase the use of electronic document storage and transfer [at its most simple, by sending documents by email]. This raises several commercial and legal issues.
There is a danger that data can be corrupted during storage or transmission; figures could be transposed or dimensions altered. The professional needs technical advice on the likelihood of that happening with the system he or she is using. Commercially, some electronic document categories are of more concern than others. Corruption may be obvious in short text messages, but not in designs. If there is a risk of corruption, professionals need to know what information should be passed to clients electronically, how clients and professionals should collaborate in the design process, and what should only be sent as hard copy.
The question arises as to who is responsible for verifying that a correct version of the document has been received. A professional's contract with the client can allocate responsibility for checking documents for corruption, but this would not cover third parties, such as the contractor or other consultants to whom they could be sent. Professionals should seek to ensure that clients stipulate a standard set of terms of use for all electronically sent documents that applies to all parties. They will also need a method of keeping accurate copies of the documents.
When documents are transferred, the opportunities for use and alteration by the recipient are greater than when the document is sent in hard copy form. Therefore, it is important for parties to ensure that they have dealt with intellectual property rights in their contracts. Usually, these are stated to remain with the author, and the document's use by others is governed by the terms of a licence.
The question arises as to who is responsible for verifying that a correct version of the document has been received
An adapter of a document will usually be responsible for the changes he or she makes, but this could be altered if, for example, the professional has agreed to check and take responsibility for it. Also, professionals need to demonstrate what they originally supplied and what changes were made by others. If the risk of unauthorised alteration is high, professionals could transfer documents in read-only form.
Where such issues arise, the professional must be able to demonstrate exactly which version of the document was issued. Therefore, it is necessary to have an effective storage policy for documents held electronically, not only for the firm's internal records, but also because the professional may need to rely on these documents in the event of a claim.
Documents held electronically are admissible in evidence if they can be properly authenticated. Civil and criminal proceedings have their own standards concerning evidence. If, during litigation, the authenticity of an electronically held document is raised, evidence will be needed to prove that the document is accurate, has not been tampered with, that it originates from its purported source and the relevant computer system was functioning properly.
The BSI publishes Codes of Practice concerning electronic data management systems. A party also has a duty to disclose to other parties relevant documents which are or have been in its control and to make a reasonable search for such documents.
Postscript
Rachel Barnes is a partner in solicitor Beale & Company, www.beale-law.co.uk.
