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When is a Computer a “Document”?

When is a Computer a “Document”? Wig & Pen n important part of any court case in an adversary computer. Committal proceedings for breach of an order of system is the evidence that is presented by both court were commenced against Mr Chopra the following sides. Most evidence is oral, given under oath, and day. given in examination in chief and under cross examination. Other evidence that may be called upon to support a Counsel for Mr Chopra contended that there had been no plaintiffs or defendant's case is frequently documentary. breach of the order because the word "document" contained However, in this technological age, courts have had to within the order required some visible writing on paper or consider the admissibility of evidence which has been other material for the purposes of the order, and did not include information stored on the hard disk of a computer. produced in other than documentary form as we have However, this argument was rejected by the court. known it. The Times Law Report included a brief outline of a Following the introduction of photocopiers and precedent, Derby & Co Ltd v Weldon (No 9) (1991) 1 WLR microfiche copying, most jurisdictions have introduced 652, in which Mr Justice Vinelott decided that such legislation to allow for reproductions of original documents information was a document for the purposes of the to be admissible in court proceedings in lieu of original obligation to make discovery under the Rules of the documents. Non-documentary evidence that has been Supreme Court of England. It was stated that the word must accepted by the courts has been tape-recordings and bear the same meaning for advance discovery. transcripts of tape-recordings made by an interpreter. Insofar as computers are concerned, a hard copy printed Despite this precedent, counsel for Mr Chopra from material stored in a computer can be admitted as contended that, while the above might be its construction in evidence. Evidence of deletion of material from the hard a technical rule of court, in ordinary language a document copy would be admissible. However, the question arises as meant visible writing and that "document" should not be to whether material stored on a computer but not given a wider meaning in an order capable of enforcement reproduced in printed form can be considered evidence by committal, the terms of which should be completely such that deletion of any part of it can have legal unambiguous. This argument was also rejected by the court. consequences. Thus it can be said that information stored on a computer is to be construed as being a "document" for the When evidence is required for a pending court case, purposes of litigation. Computers have become a major solicitors for both parties have the right, in pre-trial source of information accession and storage in many proceedings, to serve notice on each other seeking industries including the health care system. Health care discovery and inspection of any documents relating to the information regarding patients in care is frequently to be proceedings which each has in their possession or power to found stored in a computer in doctor's offices and in wards obtain. The party served with the notice must provide a list in hospitals. Whilst some of these records may be of the documents (discovery) and allow inspection of the reproduced in a written form for various purposes, there documents with a view to making copies. An exception to may be some material that at any time is contained only on allowing inspection is where the documents are covered by the hard disk of a computer. II? the event that a patient sues legal profession privilege. Where a notice is not complied a hospital for compensation for an alleged injury caused by with then an order can be sought from a court. Breach of the hospital staff, it would seem that the material on the such an order is a contempt of court for which criminal computer is available to the plaintiff patient entitling him to proceedings may be brought. inspection and retrieval of the information. In a recent English case, Alliance & Leicester Building It is already the case that "missing" medical records and Society v Ghahremani and Others (1992) TLR 129, the records that appear to have been tampered with call into plaintiff obtained a court order for discovery which was question the reliability of the records as evidence or create a served upon a Mr Chopra, a partner in a firm of solicitors suspicion that someone has deliberately attempted to mislead the court. To this factor we can now add the who had acted for the plaintiff and defendants in a mortgage transaction. When new solicitors for the plaintiffs deliberate deletion of material from a computer. Clearly, it went to Mr Chopra's office to execute the order, Mr may be difficult to prove that material has been deleted where there is no obvious consistency with other available Chopra, on being asked to allow inspection of various files, evidence. But it is not beyond the bounds of possibility that called up one which gave details of a 2-page completion evidence of deletion can be shown in a similar way as it statement. was in the case above, or that inconsistencies in evidence point to the conclusion that someone has deleted a medical When a computer expert, brought to Mr Chopra's office record or part of a record. to examine the computer, arrived at 5 pm the same day (some three hours after the service of the order) and called Judith L. M. Mair up the same file, only the second part of the document Pro-Dean appeared on the screen. The directory containing the file Faculty of Health Sciences showed that it had last been saved at 3.02 pm at which time The University of Sydney evidence proved that Mr Chopra had been operating the AMR JOURNAL VOL. 22 No.4. 1992 159 http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Australian Medical Record Journal SAGE

When is a Computer a “Document”?

Mair, Judith L. M.
Australian Medical Record Journal , Volume 22 (4): 1 – Dec 1, 1992
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Publisher
SAGE
Copyright
© 1992 Health Information Management Association of Australia Limited
ISSN
0817-3907
eISSN
1833-3575
DOI
10.1177/183335839202200410
Publisher site
See Article on Publisher Site

Abstract

Wig & Pen n important part of any court case in an adversary computer. Committal proceedings for breach of an order of system is the evidence that is presented by both court were commenced against Mr Chopra the following sides. Most evidence is oral, given under oath, and day. given in examination in chief and under cross examination. Other evidence that may be called upon to support a Counsel for Mr Chopra contended that there had been no plaintiffs or defendant's case is frequently documentary. breach of the order because the word "document" contained However, in this technological age, courts have had to within the order required some visible writing on paper or consider the admissibility of evidence which has been other material for the purposes of the order, and did not include information stored on the hard disk of a computer. produced in other than documentary form as we have However, this argument was rejected by the court. known it. The Times Law Report included a brief outline of a Following the introduction of photocopiers and precedent, Derby & Co Ltd v Weldon (No 9) (1991) 1 WLR microfiche copying, most jurisdictions have introduced 652, in which Mr Justice Vinelott decided that such legislation to allow for reproductions of original documents information was a document for the purposes of the to be admissible in court proceedings in lieu of original obligation to make discovery under the Rules of the documents. Non-documentary evidence that has been Supreme Court of England. It was stated that the word must accepted by the courts has been tape-recordings and bear the same meaning for advance discovery. transcripts of tape-recordings made by an interpreter. Insofar as computers are concerned, a hard copy printed Despite this precedent, counsel for Mr Chopra from material stored in a computer can be admitted as contended that, while the above might be its construction in evidence. Evidence of deletion of material from the hard a technical rule of court, in ordinary language a document copy would be admissible. However, the question arises as meant visible writing and that "document" should not be to whether material stored on a computer but not given a wider meaning in an order capable of enforcement reproduced in printed form can be considered evidence by committal, the terms of which should be completely such that deletion of any part of it can have legal unambiguous. This argument was also rejected by the court. consequences. Thus it can be said that information stored on a computer is to be construed as being a "document" for the When evidence is required for a pending court case, purposes of litigation. Computers have become a major solicitors for both parties have the right, in pre-trial source of information accession and storage in many proceedings, to serve notice on each other seeking industries including the health care system. Health care discovery and inspection of any documents relating to the information regarding patients in care is frequently to be proceedings which each has in their possession or power to found stored in a computer in doctor's offices and in wards obtain. The party served with the notice must provide a list in hospitals. Whilst some of these records may be of the documents (discovery) and allow inspection of the reproduced in a written form for various purposes, there documents with a view to making copies. An exception to may be some material that at any time is contained only on allowing inspection is where the documents are covered by the hard disk of a computer. II? the event that a patient sues legal profession privilege. Where a notice is not complied a hospital for compensation for an alleged injury caused by with then an order can be sought from a court. Breach of the hospital staff, it would seem that the material on the such an order is a contempt of court for which criminal computer is available to the plaintiff patient entitling him to proceedings may be brought. inspection and retrieval of the information. In a recent English case, Alliance & Leicester Building It is already the case that "missing" medical records and Society v Ghahremani and Others (1992) TLR 129, the records that appear to have been tampered with call into plaintiff obtained a court order for discovery which was question the reliability of the records as evidence or create a served upon a Mr Chopra, a partner in a firm of solicitors suspicion that someone has deliberately attempted to mislead the court. To this factor we can now add the who had acted for the plaintiff and defendants in a mortgage transaction. When new solicitors for the plaintiffs deliberate deletion of material from a computer. Clearly, it went to Mr Chopra's office to execute the order, Mr may be difficult to prove that material has been deleted where there is no obvious consistency with other available Chopra, on being asked to allow inspection of various files, evidence. But it is not beyond the bounds of possibility that called up one which gave details of a 2-page completion evidence of deletion can be shown in a similar way as it statement. was in the case above, or that inconsistencies in evidence point to the conclusion that someone has deleted a medical When a computer expert, brought to Mr Chopra's office record or part of a record. to examine the computer, arrived at 5 pm the same day (some three hours after the service of the order) and called Judith L. M. Mair up the same file, only the second part of the document Pro-Dean appeared on the screen. The directory containing the file Faculty of Health Sciences showed that it had last been saved at 3.02 pm at which time The University of Sydney evidence proved that Mr Chopra had been operating the AMR JOURNAL VOL. 22 No.4. 1992 159

Journal

Australian Medical Record Journal – SAGE

Published: Dec 1, 1992

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