In today’s blog, the Honourable J.E. Côté shares his thoughts on copied vs. original documents, including the 13 dangers of copied documents.
Each decade, a new technology gives us more convenient mechanical or electronic ways to reproduce or store written material. Lawyers and their clients make more and more use of them. It has become common to see most written material in such machine-made forms. Indeed sometimes there is no real “original” of some record in the traditional sense. Machine-made versions are all there are or ever were.
Relying on Copies
Should lawyers therefore stop asking if there ever was an “original” and simply rely on various types of copies or transmitted versions? Is an electronic version, a scan, or a photostat, always as good as the original?
This question arises in more than one context. It comes up in litigation: civil discovery of records, or criminal or family law disclosure, comes from one side to the other. The question also applies to taking instructions from clients or semi-clients, and getting admissible evidence of various things.
Much of what a solicitor does also raises such “copies” questions; conducting due diligence searches and inquiries, and securing documents needed to close a transaction.
To see whether a copy is good enough, you first have to go to the law. At common law, a copy of a document is not admissible in evidence. There are some common-law and statutory exceptions, and maybe the principled exception to hearsay might apply. But those exceptions eat away only certain corners; most copies of documents are inadmissible. And the boundaries of admissibility are very unclear.
You Have a Choice
Whether a copy is good enough also depends on balancing practicalities and risks. A practising barrister or solicitor rarely needs to demand perfection. Therefore, often it is no longer reasonable to insist on personally inspecting the original of every record. Especially if the records are numerous, or if the originals are not Readily readily accessible.
However, some records are not voluminous, and some originals are not hard to get. Sometimes you (or a junior) can see originals with one phone call and a few blocks’ walk to another lawyer’s or client’s office.
Even if there is a mass of records, often only a dozen or fewer are truly important.
That is true of closing a financing or sale, and true of civil or criminal litigation. For instance, what if a client is spending serious money to get an assignment of a building lease, or a mineral lease, or to become a subtenant? Then the head lease is almost everything. Or if the client is lending money in return for a first charge, a postponement of existing charges is critical. The client would not lend on a second or third mortgage. And very often the client will not lend without fire insurance. Businesses are sometimes bought largely for their goodwill. That in turn often comes from a trademark or a franchise. Those are documents.
When the original records are reasonably available and few in number, or really important, what should you do? Call for originals? Or try to look sophisticated and modern by asking for a scan?
I suggest that in such situations you should exert real efforts to see the original important document, and not rely upon any kind of copy. Even one which purports to be an exact reproduction, such as a photostat, a faxed copy, a scanned copy, or an unsigned copy printed from the computer which made the “original”.
What if you cannot manage to see the original of such a vital document? Then you should warn your client that there is a risk, and your opinion to your client must be qualified.
Dangers of Copies
Why are exact copies of important records not nearly as good as the original? There are 13 reasons.
1. Copying usually degrades quality of image, especially where you have a photostat of a fax or scan, especially if the original had physical peculiarities. (See items numbered 2 and 4 below.) Typically the Court of Appeal gets almost unreadable derivative copies of the vital documents. A properly-set scanner will produce what is just like a xerox; sometimes the scanner is a xerox machine. But scanners are often set for pictures, with low resolution. The result is a foggy dotted picture, like an old-fashioned newspaper photograph.
2. Copies or scans often omit some of the original writing or later endorsements, rubber stamps, or annotations. Copies probably will omit writing on the back, near a margin, under a flap or fold, or in pale ink. Few clerical assistants hand feed into a copier or scanner, page by page, looking at the backs. So backs of originals are very often not copied or scanned. And it is quite common for a scanner or copier’s feeder to run two pages through together. The usual result is not reproducing one page. Conversely, what looks like one record may actually be two: one short one and the bottom only of a different record. A schedule may be omitted. If one detects that omission in the copy, one does not know whether the original ever had it, and so was enforceable or not. I have seen a xeroxed key trial exhibit turn out to omit vital legal terms, because the exhibit was a xerox of only one side. The lawyer who insisted on an original won that issue.
It is very common to get multiple copies of the key contract, yet no one can find a signed one. No one is sure that it ever was signed, or can prove that it was. In practice I saw that problem frequently.
3. You cannot tell if part of the document is missing, which a jagged or perforated edge or staple or punch holes would show.
4. A computer asked to reprint a record will usually re-date it, and it may well attach later things not originally attached. Or both!
5. You cannot tell whether the “original” was a duplicate part of a set. Nor whether it was itself a reproduction and not really an original. So an obvious sign of a missing record becomes invisible. I have seen the key “missing” second order in a lawsuit get overlooked by one side for that reason.
6. Any kind of erasure or alteration (innocent or wicked) or outright forgery, is almost impossible to detect in a copy or scan. Yet it may be obvious on the original (if it exists at all). Probably no expert will opine as to the genuineness of a xerox of a signature. Nor can one tell what the document said before the erasure or alteration. Indeed a “file copy” of a letter does not prove that there was an original, or that it was sent.
7. A copy does not disclose whether the original record is crisp and new, or worn, and whether it once was part of a book or a file or a bigger record. Pages may be in the wrong order, or inside the wrong document, or with the wrong backer or cover, or the cover may be omitted. If signatures are on one page, but all the content on another, and the original obviously has been stapled and unstapled many times, what worth are the signatures? None of that shows up on a copy. I have seen a huge lawsuit fail for that reason.
8. You cannot tell what record was attached to or enclosed with another one, such as a covering letter. That is often a very important issue in commercial litigation.
9. Even if a perfect copy was made, after it was made the original may have been altered, revised, cancelled, surrendered, pledged, deposited, or sold to a new party (with or without endorsement). Promissory notes or cheques are still used. Sometimes a copy (such as a term deposit or a share certificate) has no legal effect; only the original does. I have seen most of those things happen and go undetected because people relied on copies.
10. In my own experience, all types of copy fairly often gravely degrade physically (ink or paper or both) after about 15 years. That includes the most modern printing or copying methods, which we now call laser printing. And it is true of electronic records on drives or discs.
11. Different inks or entirely different colors often look identical on a copy. Or one may not copy at all, and disappears, especially if the paper of the original was colored.
12. From a copy you have no idea what type of writing or printing or ink the original used.
13. A copy is never the identical size of the original, and it can be dramatically different. People often shrink copies for convenience.
Decide what few records really matter. Do that while there is still time to get originals. Try hard to get, or at least see, those important originals. If the other side does not produce them, ask searching questions, and warn your your client.
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