It is said that a verbal contract is worth the paper it is written on. Although the common law recognises oral contracts, this oxymoron reflects the problems associated with proving not only the terms of a verbal contract, but also its very existence. The law of evidence is central to legal systems. Its restraints, rules and procedures aim to provide certainty and reliability within the criminal and civil justice systems. New and unanticipated problems emerge when these historic and sometimes antiquated rules of evidence are applied to electronic documents and records.

This chapter identifies the problems of applying paper-based rules of evidence in the electronic era. It first addresses how electronic information should be retained for the purposes of its potential use as evidence in legal proceedings and examines the relevant case law and statutory provisions. It then tackles the thorny problem of submitting to a court, as evidence, hard ‘copies’, typically printouts of electronic records such as electronic mail, particularly in circumstances where the electronic version has been deleted.

Evidence of electronic records

Courts typically establish facts before determining rights and imposing orders. The rules of evidence were developed to ensure a just basis for the making of such determinations. Evidence should be relevant, reliable and the best that is available. Notwithstanding modern statutes on evidence, case law from the 17th and 18th centuries still dictates the form in which evidence must be presented.