I feel a need to comment on this issue. This actually is a topic that my
committee in the American Bar Association is trying to develop an article or
publication on since there seems to be many conflicting opinions on this.
Even though the federal E-SIGN act and the Uniform Electronic Transactions
Act (UETA) were passed several years ago allowing electronic records and
signatures in evidentiary proceedings, there are some exceptions. One of
those exceptions in the financial services world is the original signed loan
documentation or note. There has been much discussion and disagreement
whether this original documentation can be imaged and the original
destroyed. The reasoning under the UETA is that an imaged signature is not
an original electronic signature and for the purposes of an electronic
"transferable record", an original electronic signature is required. A
transferable record is one that transfers rights in that document, such as a
promissory note. There is a difference and distinction between a signature
created electronically or merely "copied" such as in imaging. Some
attorneys in the financial services area believe imaging an original loan
documentation note and destroying the original does not preserve the legal
rights of the company as holder of the note. Some state laws indicate
that if the original documentation is lost or destroyed, then the note is
considered to be "forgiven". I don't know if this has been challenged in
court, but the deliberate destruction of an original, even if there is an
imaged copy, may cause the loan or note to be considered "forgiven". This
is just one example I have been given by attorneys in the financial services
One size does not fit all - like retention schedules, you must research the
nuances of the law to determine you are not failing to meet the
requirements. There are still some states that require certain records to
be retained on microfilm - not electronic. The UETA or E-SIGN Act do not
pre-empt any state that has more stringent requirements for certain record
types. It may be that the legislature in a particular state has not
revised the code - but if so, the law remains that you must comply with the
media requirements for that record.
Many companies that generate a great deal of paper, like USAA, have used
imaging for many years - and do destroy the hard copy. But I do not know
to what extent that imaging is done for vital records or other significant
records within the company.
Unfortunately, there is no easy answer to this - but I would venture to say
that at least 75% of business records could be imaged and the hard copy
destroyed without any problem. The other 25% would be records that have a
binding legal effect and could jeopardize the company if they were
destroyed. Even if imaged, there should be a duplicate copy for disaster
recovery purposes retained off-site of vital records.
I guess this might be a good topic for an ARMA conference session.
Rae N. Cogar, Esq.
Cohasset Associates, Inc.
5874 Shamrock Ct.
Hamburg, NY 14075
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