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Electronic Document Storage: Do Ya Feel Lucky?

lesson learned Mar 09, 2020

by Philip E. Goss Jr., Esq.

 

I am all at once amazed, befuddled, frightened and impressed by one of the most common things I see people do: rely completely on their cellphone for maintaining their schedule, paying bills, navigating unfamiliar terrain and God knows what else. They do all this with the apparent confidence that every action they complete, including executing legally binding agreements, is made valid by the mere fact that it’s accomplished through technology.

Much of my hesitancy to develop comfort with a paperless world was hardwired into me by my early office experiences. My formative years occurred when fax machines were the size of small refrigerators and printer paper was secured by steel teeth running on parallel tracks, requiring the removal of serrated edges before use. If you really needed to get a document somewhere in a hurry, you had to use a company that guaranteed overnight delivery. No email for the masses in the early 1980s!

The definition of what constitutes an “original document” has morphed, as well. In the past, a party seeking enforcement of a written obligation was tasked with the duty of establishing that the obligation existed. This was done by producing the original executed document (or establishing a lost document) because this was considered the “best evidence” for evidential purposes.

Therefore, the key message from my columns of the past 17 years — never throw away any original document — remains. If a document has inked signatures or initials, it simply must be preserved. This caveat is why we’ve all seen offices where a majority of prime space is dedicated solely to mauve metal file cabinets.

Today, however, most business owners accept electronic signatures, execute electronic contracts and collect electronic data. Where is the digital information that makes up these e-documents stored? How can we ensure that something we can’t even touch is secured?

Several federal and state laws were enacted in the early 2000s when people foresaw what the internet would develop into. These laws provide legal protection to parties who sign documents electronically under a broad range of circumstances. The parties must agree to electronic signatures. Notarization, if required, also must be delineated on the document, not attached thereto. Typically, the document must be related to a commercial transaction.

A long-term school owner/client recently asked for advice regarding the retention of electronic documents. He was considering the use of a data-information service. As a perk, the company guaranteed free access to all electronic documents for the next 10 years.

While the world demands that I accept the existence and use of electronic documents and signatures, it doesn’t compel me to advise my clients to accept off-site data storage unless they have complete and irrevocable control over the storage and access to the documents and digital materials is guaranteed. Many such companies that once held promise have ceased operations. If that happens to you, even if the information is somewhere, can you guarantee you can access it?

I strongly suggest that whatever entity you choose to generate or store commercial documents for your school be required to automatically and simultaneously direct courtesy copies of all digital information to you. It is then your sole responsibility to immediately secure all such information.

My fellow MASuccess columnist Beth Block has done an excellent job of warning readers about how the timeframe to bring a lawsuit can be greatly extended for a minor’s injuries. Four years past the date of the minor turning 18 is the standard in Florida, for example. I say this because if ever you need to access a document or waiver executed years ago, you’ll be ecstatic you have ready access.

The lesson here is simple: It’s acceptable to allow a third party to maintain your electronic documents and information, but protect this information as you would cash money! Speak to your insurance carrier and purchase negligent-disclosure coverage. Remember that no person or entity cares more about your business than you.

 

To contact attorney Philip E. Goss Jr., send an email [email protected]

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