Scanning Brings a New Dimension to Legal Precedent

A recent column in the San Jose Mercury News illustrates that change happens slowly in the law, where precedent (stare decisis, in the language of 2,000 years ago) remains preeminent – even when technology offers a better way. According to the column, a lawyer sought to bring a ScanSnap S1500 to the offices of the Santa Clara County planning department to scan documents for a case, but was told that scanning was not allowed. County policy permitted photocopying only (at 10 cents a page).

The lawyer sued for scanner access, claiming that the county was violating the California Public Records Act, but the County Counsel saw things differently. His position was that the ban on scanning aimed to "preserve the integrity" of documents that could be lost or damaged if they were scanned. The county counsel doesn't say how this is different from photocopying. This assertion for maintaining the documents' integrity, while a legitimate concern, does not mean scanning is a culprit. Protective conditions can be created to assure no documents are lost. Oh, and County Counsel filed to acknowledge that county records are already digitized and, thus, cannot be "lost."

Not only does the County's position ignore the reality of scanning (which in fact preserves the integrity of documents so they cannot be altered), it flies in the face of what many other legal entities have already discovered about scanning's ease and time-saving. As one example, the Judicial Council of California (yes, the state where Santa Clara County is located) gave its 2011 Ralph N. Kleps Award for improved court administration to the Fifth Appellate District of the Court of Appeal for its Electronic Writ Processing Program, which used scanning to reduce paperwork for each case.

Before the program began, court clerks needed to make multiple copies of all petitions. The new process, which involves scanning each petition (including all civil and criminal writs) to create electronic files, is 25 percent faster. The entire project was done in house and cost $39,000 for all hardware, software and training. One senior appellate attorney described the benefit: "I can scan in relevant sections of the case, brief or exhibits, and include attachments… As soon as my memo is complete, I can put it on the system and send it to the three justices to vote. I can receive all three votes within 24 hours and, thus, file the case several days quicker."

This graphically illustrates how the advances being made with technology can reduce the need for unnecessary paper in legal proceedings. Individual lawyers can now use scanning to reduce the time for taking notes when looking at court records. To do so increases the accuracy of representation when quoting from a document back in their offices by looking at a scanned copy of the actual court record they scanned in their research. The process is more efficient for the lawyer, means better service and lower cost to the client and better case management in the court.

Santa Clara County may well decide to join the rest of the legal world at some point and recognize that scanning is a benefit rather than a menace. In the meantime, those who embrace technology's transformation of the law rather than fight it will continue to find positives that they never would previously have imagined.

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