What is the legal value of native electronic documents (that do not require signature by the parties)?
The majority of legislation generally recognizes the validity and probative value of documents that are natively electronic (i.e., created as electronic originals), subject to compliance requirements.
In the United States, there are generally no restrictions on employers distributing and storing HR documents electronically, with the exception of benefits-related documents subject to the Employee Retirement Income Security Act (ERISA). Whether the native electronic document is admissible into evidence is determined by the same rules of evidence that govern paper documents.
The native electronic document: must be relevant; must be authentic (meaning whether the employer can show that the document is what it purports to be); must be governed by an exception to the hearsay rule if a hearsay statement is offered for the truth of the matter asserted; must be an original or duplicate under the original writing rule (the original writing rule defines an original for electronically stored information (ESI) as “any printout – or other output readable by sight – if it accurately reflects the information”); and, must not be so unfairly prejudicial that the prejudice substantially outweighs its probative value.