Paperless Office Progress Actually Observed

As a kid at the beach, I became aware, at some point, that although the rising tide can and will come in and soak previously dry ground, it’s usually pretty hard to tell exactly when the tide changes and starts receding. In fact, it seemed to me that the tide level just sort of stayed at the same place for quite a while, before there was any discernable retreat.

115_paperless-officeA recent article by Christopher Mims with the catchy title  Why the Paperless Office Is Finally On Its Way caught my eye. Turns out that, no; it hasn’t been just your imagination: The advent of nearly universal “Paperless Offices” (or, as we like to call it, “Paper On Demand”) has been, shall we say, a bit slower in coming than had been predicted forty years ago, when an article in Business Week predicted that “…paper would be on its way out by 1980, and nearly dead by 1990.” In fact, Mims cites reports that indicate the number of pages printed in offices was increasing until 2007.  Now, we have analysis that 2007 was the high water mark.

Now, what’s interesting to me is not that the Paperless Office didn’t arrive on schedule – we all know that. What’s interesting is that it now looks like the tide has actually turned.

According to Mims’ sources, since 2007, office use of paper has declined a steady rate of 1% to 2% a year.  The article goes on point out a number of reasons for the hitherto slow progress away from paper.  Still, it concludes by predicting that the trend away from paper is gaining momentum; although full transition will clearly take some time.

Here are a few of my observations on these findings.

First and foremost, keep in mind that the “1% to 2%” figure is an aggregate. It could mean that every office has reduced its printing that much. Or, it could mean that 1% or 2% of all offices have reduced their printing to zero; and all the rest still print just as much as they always have.

The reality is somewhere in the middle. I think what you’ve got is a relative handful of offices reducing their printing by far more; and most offices, even when they are utilizing electronic documents, still printing as much as or more than they always did.

One excellent illustration of how this situation occurs involves our old “friend”, the process of printing out a paper for a judge to physically sign. Attorneys filing physical documents (which they had to print), which the court then scans into an electronic document management system, again keeps the “print count” elevated. The answer here, of course, is implementation of E-Signature.

Another all too common example is printing out e-filed documents, then scanning them into an existing, non-integrated DMS. Courts have discovered that, among its many other benefits, implementation of a strategic enterprise content management system will eliminate this huge demand for printing to paper.

When we see progress, such as the announcement that, having launched an e-filing pilot initiative in 2011, the Macomb County, Michigan Courts in July, 2016 report processing more pleading filings via their e-filing system than through the U.S. Postal Service, we are seeing how the tide really is starting to turn.

The statistics and trends noted in Mims’ article indicate that the balance has shifted. Furthermore, for lots of reasons (and we have discussed them here – generational, technological, financial), paper usage is not only dropping, but the rate is accelerating. Those who over the past several years have committed to and invested in moving toward “Paper on Demand” are and will continue to realize greater and greater benefits. Those who have yet to embark on the journey will soon find the pressures to do so building to an irresistible level as the receding tide leaves them alone on the beach.

Stalking the Wily Electronic Documents

I am STILL surprised when I hear that some judges question whether eSignatures can be as trustworthy as “wet-ink” signatures. In law school I somehow missed the course that conferred “expert handwriting analyst” status; but maybe that was just one of my many oversights. I mean, really? Leave aside all other arguments: How many people are even marginally qualified to determine with any level of certainty whether a signature, on its face, is “authentic”? My oft-stated position is that a passable ability to forge signatures that will endure routine scrutiny is a sixth-grade level survival skill, honed through practice on permission slips and potentially embarrassing notes from teachers.

At the October Texas Association of Court Administrators (TACA) Conference, David Slayton[1] gave an excellent presentation on e-filing. Among other things, he showed documents eSigned using “/s/” and using a graphic, hand-drawn eSignature, either of which are acceptable under Texas rules.

David remarked that he occasionally has judges question whether such eSignatures are adequate. He gets remarks like, “Anyone can type “/s/” or paste an image of a signature onto a document.” He says his answer is, “Yes, Judge; but I know EXACTLY where the document came from, and whose profile was used to send it.” Knowing that a document has come from the right place, and knowing whose secure profile was used to send it, constitute security orders of magnitude greater than a written signature on a piece of paper. eSigned documents are simply more secure.

Taking David’s point a step further, in an appropriately implemented Enterprise Content Management (ECM) with workflow system, not only do you know where the document came from, you know where it’s been and where it’s supposed to be going. It’s like Billy’s trail in the Family Circus: it leaves its tracks. It keeps track of who has looked at it and when. It keeps track of what was done to it, by whom, and when. And, unlike Hansel and Gretel’s breadcrumb trail, it doesn’t disappear.


Family Circus – Jeff and Bill Keane

Not to push the Family Circus analogy too far, as there are of course many, many other important aspects of ECM with workflow; but one closely related aspect does bear mentioning. Billy may LIKE to wander all over hither and yon; but if he’s doing it every day (or if everyone is doing it), it may be time to find a more direct path. ECM with workflow will let the court know what route documents are following. If there are unnecessary steps; or if the order in which they are being processed is chaotic (or at least non-optimal), that will show up like Billy’s footprints after walking in mud.

Finally, if Billy takes the same route every day, but one day, even though he ends up in the same place, the trail is different, that’s another flag to apply extra scrutiny. If a filer always files according to a regular pattern, but a purported filing comes in following a non-routine pattern, that will signal the advisability of further checking its veracity. In large courts with many filers, such patterns are probably impossible to keep track of in a paper-based system; but an ECM receiving eFiled documents has considerably greater capabilities in this regard.

Thus, with eSigned documents in a properly implemented ECM with workflow system, not only do we know that the document comes from who it’s supposed to; we know whether or not it’s been altered since it was sent, who has touched it, where it’s been, where it’s heading, whether it’s behavior makes sense, and if not, what would make better sense. Sorry about that, Judge; paper documents with wet-ink signatures just won’t do that.

[1] David Slayton is Administrative Director at the Texas Office of Court Administration. He is currently President of the National Association for Court Management (NACM).

Missing the Starting Gun

“And then one day you find
Ten years have got behind you.
No one told you when to run;
You missed the starting gun.”

Time, Pink Floyd, from Dark Side of the Moon

76_starting gun

On hearing the other day of a jurisdiction that is still insisting on “wet signatures” for court documents, I wondered, “What are they going to do when the really new technology gets here?” Almost immediately, I realized that, in the timeframe in which statutory, rule and policy change exist (months and years), “new” technology is really here already; or it might as well be.

For years now, acceptance of electronic signature for court documents has advanced, albeit sometimes at an almost excruciatingly slow pace. Yet even as, one by one, the justifications for avoiding, postponing or, even worse, “backing up” e-signatures with wet signatures have been shown to lack validity, resistance persists in a shrinking, but still unfortunately significant, number of jurisdictions.

Even ignoring the money that is being left on the table (or, put another way, leeched from the judicial budget), as well as the inherent loss of efficiency and introduction of opportunity for error, there are forces at work today that present another major downside to leaving laws, rules and policies in place that inhibit full adoption and use of e-signatures. New technologies include fingerprint identification, facial recognition, retinal verification and even DNA matching (without blood). Some of these are already in use or approaching readiness for prime time. New smart phones have fingerprint identification (which is rapidly improving). Apple is reportedly working on a facial recognition interface to unlock iPads and iPhones. Within the next few years, such biometric authentication will not only be mainstream, it will be required for most security.

Admittedly, wholesale adoption of universal biometric verification is still a ways down the road. One might argue (and, in private, I might be that one) that it’s closer than you think; but it isn’t here yet. But that doesn’t mean that there’s any time left before jurisdictions can comfortably start exorcising references to and requirements for wet signatures on court documents in their laws, rules and policies.

Courts and jurisdictions that have gone through the process and due diligence of tracking down, identifying, examining the reasons for and removing (without compromising security or integrity) the almost infinite hiding places of requirements for wet signatures will find transition to the next phase of authentication much less painful. They will, in fact, be able to make the transition. Those that fail to purge those anachronistic requirements and continue to operate full or partial wet-signature processes will have a much more difficult time of it.

This fact represents one of the often overlooked risks of trying to skip or sit out a change cycle. On the one hand, you might think that you can save the trouble and expense by only changing once. Ha, ha — look at those poor courts that spent all that time, money and effort converting to newer technology, only to later have that technology be replaced by something else.

Again, even ignoring the financial and operational benefits the adopting courts enjoyed, such thinking ignores one critical reality: Usually the next cycle can only be reached when starting from a firm foundation in the previous cycle. Furthermore, obvious as it sounds, people and organizations — including courts — that have experienced change more readily embrace the need for and adapt to more change later.

Over the past several years, the financial situation of the justice system had, among its many unfortunate consequences, the effect of stifling change in many places. Now the time has come to try to get back in position to catch the next wave or risk being swamped.

Yes, that WAS the Starting Gun.

In Praise of Signatures


To paraphrase Winston Churchill, I have been a vocal advocate of electronic signatures for a long time; and I will not now unsay a word of my advocacy.  Most statutes, rules and orders are silent or very broad as to HOW an electronic signature must be appended and represented on court documents; and many, if not all, enabling statutes, rules and orders authorizing the use of electronic signatures for courts allow for use of ” /s/ ” followed by the typed name of the signatory.  For some very good reasons, many of which I have previously noted, this approach offers flexibility while still providing the requisite level of authentication.

 That said, I think it’s important to note two aspects of signatures that are definite plusses when they can be provided with no loss of efficiency.

First, while legally a ” /s/ ” and typed name may suffice, there is something more emotionally compelling about a signature that looks like a signature. Of course, “looks like a signature” is somewhat subjective.  My signature, for example, is notoriously illegible. But it IS distinctive. There’s a reason that all U.S. paper currency bears the signature of the Secretary of the Treasury instead of just the printed name. Some documents, particularly court documents, have solemn effects.  Signatures that are clearly hand-drawn contribute to the solemnity of the document.

(At a court conference, a probate judge told me that many of the people who appear before her actually frame their judgments in cases like adoption, change of name, and sometimes estates. She expressed her belief that the hand-drawn signature constituted an important element of the emotional power of the document.)

Second, and related to the first, is the question of permanent inextricability.  If a mason leaves a plaque beside his work, the work will be identified as his as long as the plaque remains in place.  But if he writes his signature into the cement, as long as the cement is there, so is the attribution.  A lad can post a note on a tree declaring his affections, but carving a pair of initials inside a heart into the tree will be seen as a much more enduring statement.

In the same vein, there is a definite benefit to not only electronically signing a document, but permanently and inextricably binding the hand-drawn signature to the document itself. That is, rather than simply overlaying an image of a signature, which could later be removed or substituted, “burning” the hand-drawn signature into the document itself. That way, as your mother used to tell you about tattoos, it will be there forever.

It’s an easy trap to fall into to focus strictly on the mechanistic and legalistic requirements for documents when implementing paper on demand.  Indeed, in the efforts to craft the most efficient technical solutions, many implementers — with the best of intent — overlook the emotional and psychological factors that have been implicitly and explicitly utilized to assure and reinforce the impact of court documents.  The very foundation of the legal system rests on the beliefs of the public over which it asserts authority.  For that reason, it is both legitimate and valuable to continue to utilize hand-drawn signatures, permanently attached to court documents, even as the court moves to a paper on demand module.[1]

[1] TrueSign®, from ImageSoft, provides the capability to burn hand-drawn signature images into documents.


Irony (Part Two)

62_irony2As information continues to emerge on the use of forged documents to affect prison escapes in Florida, it now appears that a well-designed e-signature implementation would have made the scheme considerably more improbable.

The method, it seems, involved filing high-quality forgeries of paper motions and orders.  Judicial signatures were forged on the paper documents.

In the movie Beau Geste, as the native attackers retreat from Fort Zindernuf, the psychotic and sadistic sergeant, says, “They come when I need them, and they leave when I don’t need them any more.”  The same could be said of the forged orders: They left no tracks either coming or going.  Because they were neither created by nor processed through any workflow that tracked them, they were there when the prison release officials checked with the court.  Once the inmates left, they didn’t need the documents any more.

For a wet signature — even one augmented by a raised seal — to have provided adequate protection would require AT LEAST that those receiving and examining the documents have

  •  A template against which to compare what they are receiving;
  • The time to carefully perform a forensic-level examination of the current offerings; and
  • The expertise to do so.

While in time past these functions may have been relatively easy, today’s technology renders them non-trivial.  See, for example, this article regarding 3-D scanning and replication of classic paintings, reproduced in microscopic detail down to the brush strokes.   A raised seal is much easier to reproduce than a Rembrant.

Whether a team of experts could detect the forgery is really not relevant to our current discussion.  Alas, the days of having documents be self-authenticating on their face are probably past.  While doing so may not be cheap or easy, it is getting cheaper and easier every day.  As the judge who provided me with his thoughts (set forth in A Judge’s Secret Fear of Electronic Signature ) so aptly pointed out, there may be times when it’s worth someone’s while to go to the time and expense necessary to subvert the system, as the U.S. Mint knows all too well.

Had the court required such orders to be e-signed, there would have been no way for them to be filed at all.   For the fraud to have work, the perpetrators would have needed:

  •  Access to the judge’s PC, and
  • The judge’s password, and …
  • Knowledge of how to operate the system, and
  • The ability to  control the workflow to subvert the system (because the system tracks which documents are signed and notifies the parties involved), and
  • The ability to  make sure court officials do not find out about it (because the system regularly provides a report of what has been signed, when and by whom).

Clearly, something as important as prisoner release orders would justify special workflow and alert reporting as well.  It simply could not happen absent multiple people inside the court willing to go to prison themselves (because they would be leaving tracks all over the place), including not only people with court processing and procedural expertise, but also people with understanding of the system infrastructure and authorization to access it.



Recent headlines concerning inmates who escaped jail using forged documents caused me to look back to my first blog entitled A Judge’s Secret Fear of Electronic Signatures. In it I quoted a senior, highly respected judge expressing his concern about the security of eSignature.  He said, in part,

 “My concern then and now is with the availability of others using the computer for making documents official. With the personal signature, there would have to be a forgery to make the document appear to be an original signature. The availability of a signature stamp can be regulated or precluded; however, once the computer has the signature capability, anyone with the password can access the e-file and create an authorized signature on the document. The ability to establish that this was an unauthorized signature would appear difficult.

“I also have a concern that the security system appears of doubtful reliability to preclude someone from being able to enter the system from the outside and thus be able to alter or create false documents with apparent valid signatures.

“I can envision cases where there is a great deal at risk where it could become worthwhile to prepare a false document with an apparently valid signature to secure the release of a prisoner or to effect some other act to the considerable detriment of others.”

 That discussion occurred three years ago.  Now, it seems, the judge’s fears were realized, albeit in a court in a different state.   But, the recent escape didn’t happen because of e-signatures or electronic documents.  Indeed, it appears that the forgeries purported to be original, wet signatures.

Let’s return to my original blog.  Its point was that the judge was absolutely right to be concerned with security and court managers have an absolute responsibility to demonstrate to their judges that they have addressed and are faithfully managing the technology, policies, processes and procedures to assure their ongoing effectiveness.  That the judge was unaware of the security setup in his court represented a barrier to acceptance that could, and should, easily be remedied through appropriate communication by court management.

Based in part on the judge’s concerns, in my white paper, Legal Considerations of E-Signature, I point out that security is essential in EITHER a paper-based OR a paper-on-demand environment:

“As an analogy: A treasure chest is in a vault at the top of a castle tower surrounded by a moat with a drawbridge. There are multiple safeguards. However, if the drawbridge is down, the gate is open, the tower stairs are unattended and the door to the vault is ajar, then despite all the safeguards, there is little security.

“Contrast this scenario with one in which the chest is guarded day and night by one sentry with a sword. Arguably while there are fewer safeguards, there is more security, but this scenario is problematic. The guard – however loyal and motivated – can fall asleep, be outnumbered, leave his post, and so on. It’s a risky and expensive system.

In a properly configured paper-on-demand court, every interaction with documents and files is recorded.  Anyone reviewing the files with an eye toward effectuating the type of scam that resulted in the recent unauthorized prisoner release would be leaving a trail of evidence.

Ironically, the most catastrophic possibility that the judge feared – forgery of release documentation – turned out to be not even slightly protected through use of wet signatures.

That isn’t to say that e-signature would have, in itself, provided more protection.  It really isn’t that hard to forge an electronically imaged signature either.  The point is that:

“In the paper/wet signature world and the electronic document/electronic signature world, it is critically important to carefully manage the environment, the technology, policies and procedures, and operational responsibility, and to
 audit for compliance. However, it is much harder and more expensive to do it in the paper/wet signature environment.

Looking past the irony, something else starts to come into focus.  In the recent release case, apparently all agencies – the court and the corrections division – acted exactly as required by their existing policies and procedures.  So, in a world where production of fakes and duplicates that cannot, as a practical matter, be authenticated or de-authenticated on their face, how can down-stream consumers (like prisons or banks) be certain they are acting in accordance with valid judicial orders?

Stay tuned….

To learn more about the safety and legality of electronic signature, download a free whitepaper by Jeffrey Barlow on The Legal Considerations of eSignature.

Change Your Luck

I like to think of myself as a fairly positive-minded guy.  Still, just like everyone, some days I can identify with Joe Btfsplk (not a misspelling – if you don’t get the reference, Google it), the perpetually bad-luck victim with a black cloud over his head from the old comic strip “L’il Abner”.


 One of my favorite “Please don’t bother me; I’m busy being miserable and feeling sorry for myself” images comes from a circa 1970s commercial (Alka Seltzer Cold Relief, I think).  The ad starts out showing a hitchhiker, standing in a blizzard, sneezing and coughing.  Behind him in the snow the sign reads, “Welcome to Bangor, Maine”.  He holds a hitchhiker poster that says “Miami Beach”.  A white Corvette pulls up along side of him.  The beautiful, blonde driver rolls down the window and husks, in her best come-hither voice, “I’m only going as far as Fort Lauderdale.”  Whereupon the miserable hitchhiker, with a deep sigh that says, “Yeah, just my luck today!”, turns away from the ‘Vette and holds his sign back up to the passing cars.

Some days are just like that.

Well, sometimes I have to wonder.   Occasionally I still find court folks, including some judges, who claim that they would consider using electronic signature systems, “If only they were legal“.

Now, I will grant that there are still some anachronistic rules, orders and even obscure statutory references that can be at least arguably interpreted as preferring, if not requiring, paper documents and/or “wet” signatures.  But to not even start on the road to ECM and electronic signature simply because there may be some rules that retain old, outdated terms constitutes a completely disproportionate response.

Take, for example, the Federal Rules of Civil Procedure.  Federal courts have been using electronic documents, e-filing and e-signatures for decades now.  But consider the language of FRCP Rule 5 in the December, 2012 version of the Rules.[1]  FRCP 5 continues to use the term “paper” to mean “document”.  Here’s a sample:

 “Rule 5.  Serving and Filing Pleadings and Other Papers {emphasis added}


(1) In General.  Unless these rules provide otherwise, each of the following papers {emphasis added} must be served on each party:

 (2) How Filing Is Made – In General.  A paper {emphasis added} is filed by delivering it…”

One way to look at this language is to conclude that it absolutely bars the use of electronic documents and wave the ‘Vette away.

As everyone who has dealings with the federal courts knows, that’s not what happened.   The language wasn’t even changed. (Who knows how many other rules reference it.)  Instead, Subsection 5(a)(3) was added:

 (3) Electronic Filing, Signing, or Verification.  A court may, by local rule, allow papers {emphasis added} to be filed, signed, or verified by electronic means that are consistent with any technical standards established by the Judicial Conference of the United States.  A local rule may require electronic filing only if reasonable exceptions are allowed.  A paper filed electronically in compliance with a local rule is a written paper for purposes of these rules.

 In short, the rules completely changed the definition of paper to include “not paper”.  And, wisely, the particular implementation decisions are firmly placed outside the rule (“consistent with any technical standards established by the Judicial Conference”; meaning approved by the judges).  Such decisions can be made as needed, in an orderly fashion and amended or superseded as technology, court practice and other environmental factors change.

Yes, anachronisms still permeate laws, rules, processes, policies and procedures at many levels.  But that is no reason to moan and groan about being unable to move ahead.  Time to leave the black cloud behind, hop in the ‘Vette, and head for the sun.

[1] Federal Rules of Civil Procedure, December 1, 2012,

How Paper-On-Demand Can Provide Judges with Documents That Work “Better Than Paper” (Part Four – Electronic Signature)

I conclude my overview of what judges should require from an Electronic Content Management (ECM) interface by considering the functionality judges need to effectively, efficiently, and appropriately sign documents in a timely manner.

For reasons covered at length elsewhere , requiring judges to manually affix wet signatures to documents that are otherwise electronically stored and managed results in greatly increased cost, effort, overhead and opportunity for error. Moreover, from a judicial convenience standpoint, the ability to sign documents when they are ready, from anywhere (without waiting for them to be fetched) and having them immediately forwarded to whoever conducts the next step(s) in their processing saves immense amounts of judicial time and effort.

Briefly, some of the key reasons E-Signature benefits judges include

• Paving the Last Mile – Printing out a hard copy, getting a wet signature, then re-scanning the signed document greatly reduces the efficiency, and therefore the financial benefits, from the new system. Moreover, from a judge’s perspective, it also opens up a large and unnecessary area where mistakes, errors and security breaches can occur, all of which add up to judge’s time and effort.

This is analogous to having a one-mile stretch of unpaved road in the middle of a superhighway. Everything slows to a crawl and the potential for problems escalates. For this reason the adoption of the use of electronic signatures often constitutes “Paving the last mile on the road to a paper-on-demand court”.

• Simple and Easy to Use – The system has to be simple and easy to learn and use. The judge should be able to easily review the document, then go right to where the signature is required and apply it.

• Markup and Revision Control – E-signature with Markup Control allows judges to make changes to a document submitted for signature and then sign the revised document, secure in the knowledge that the system will track the revision, including when, where and by whom the change was made.

• Anywhere, Any Time – With paper documents, either the document has to get to the judge, or the judge has to get to the document. With ECM, the document can be available to the judge anywhere, any time.

• External Notifications – Once the judge is done with the document, the workflow component of the ECM system will route the document (with changes, signature, etc. as applicable) to wherever and whomever it needs to go. So, if the judge reviews a proposed order, makes changes, and wants to distribute it to the parties for review and approval, the system will handle it. If it should be diaried to be reviewed at some future date, the system will do that.

In summary, judges should not have to assume that moving to Electronic Content Management will require them to give up the document and file functionality so important to the effective performance of their judicial duties. They should, however, be pro-active in insisting that their requirements be clearly stated and understood. Those requirements typically include

• Instant accessibility
• Fast, Accurate, and Intuitive Navigation to the Needed File, Document, and Page
• Easy to Read
• Easy to Physically Manipulate
• Easy, Secure, Flexible Signature Capability

Judges should insist that the ECM system as implemented satisfies those requirements, not just to the standard of paper, but to a standard that is better than paper.

The Retention Dilemma

“For every complex problem there is a solution that is simple, neat, and wrong.”  H.L. Mencken

 One particularly persistent obstacle to adoption of the Paper-On-Demand Court paradigm (and the financial savings attendant to it) is how to handle requirements for permanent document retention.   The historical paradigm consisted of the requirement to keep the original document.  Because, almost by definition, the “original document” was hard copy, that meant storing the paper.  Easy to understand; not always easy, safe or inexpensive to do.   More recent retention requirements include the option to copy paper originals to microfilm or microfiche.

With the advent and acceptance of the legal sufficiency of electronic documents and signatures[i], statutes, court rules and general orders routinely validate the electronic version of a document as the “original” and “official” document.  This is true for documents born on paper and later scanned into an ECM system, as well as for documents born electronically (e.g., documents filed electronically or documents created, e-signed, and filed by the court).

So where does that leave the “permanent retention of the original” paradigm?   Under the traditional paradigm, even “original”, “official” documents would have to be copied to either paper or microfiche.

In most states, and at the federal level, the ultimate responsibility for physical retention standards resides in the archivist.  The archivist of one state in which courts are using ECM and E-signature verified that, under current laws and rules, courts are required to keep either paper or microfilm copies of documents.  For documents existing in digital format, this means printing them out. 

OK, then “When would the court be required to do so?”  The answer: There is no time requirement, other than “Some time in the future.”  On checking with a court administrator, I found that, to the extent there is a plan, it is to await future developments in this area.

A visit to a court in another state, which had also adopted a Paper-On-Demand model, found the existing laws and rules, as well as the current approach, are EXACTLY THE SAME: They too had discontinued microfilming pending long-term resolution of this question, and had done so not arbitrarily.  The court had had, for some time, serious concerns about the long-term integrity of microfilm, not to mention significant storage and equipment costs.

I’m beginning to detect a pattern.  States (and the federal government) have been devoting substantial time and effort to development and administration of rigorous, comprehensive records management standards.  While the standards are technologically agnostic, they DO address the technological issues, including how to guard against records becoming inaccessible through technological obsolescence.  The answer generally consists of periodic required reviews of the current and projected technology, together with explicit plans for record migration from generation to generation.  A 2008 National Association of State CIOs paper[ii] contains a good overview (and source material) of such efforts.

As is common in government, judgments are made based on the state of technology at a point in time, and nobody remembers to reassess the decision at a later date.  Much of the consternation with using electronic documents as the original record is rooted in some early failures.  This stems largely from the fact that, at one point, there was no national (or international) standard for file format that would assure long-term viability.  Therefore, vendors created their own proprietary formats, and some organizations got stuck with an electronic repository of documents that was expensive to convert.

The problem was largely solved years ago when ISO and AIIM established standards for the PDF/A, TIFF (TIFF is the standard for storing scanned documents), and JPEG (for photos) file formats.  Even Microsoft had to acquiesce and start using an international standard (DOCX) for storing their files.

So once again, Mencken’s observation hits the nail on the head.  There are plenty of simple answers to permanent retention, but all come with issues.  None is effective without persistent due diligence.  But given the proper commitment to due diligence, some are more effective and less costly than their predecessors.

[i] See Legal Foundations of E-Signatures, [citation and link]

[ii] Ready for the Challenge?  State CIOs and Electronic Records, NASCIO, 2008,