Admissibility of Electronic Records Requires Proof of Records Management System Integrity

Abstract

The integrity of an electronic record is dependent upon the integrity of the electronic records management system in which it is recorded or stored. That dependence operates regardless what the local Evidence Act states or doesn’t state. An electronic record in an electronic records management system is like a drop of water in a pool of water — it can be only what its records system allows it to be. The requirements for establishing that “records management system integrity” are defined by the National Standard of Canada, Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005 (“72.34”). They are presented in detail in an appendix. Therefore, those Evidence Act admissibility provisions require proof of records system integrity, which should necessitate proof of compliance with that national standard. But in fact such proof is not required. Because there is no law of broad general application enforcing those records management requirements, and many organizations believe that they need only their most recently made and received records, records management defects, and defective software in records management programs, are very common. The acceptance of electronic records as evidence is comparable to receiving expert opinion evidence without evidence as to the qualifications of the expert witnesses.This article lists some of the major defects commonly found in electronic records management systems, and the frequency of software errors. It explains the “triangle of interdependent concepts” for the use of electronic records as evidence: (1) the “system integrity concept”; (2) the “prime directive” of the national standard; and, (3) the “proportionality principle” of electronic discovery proceedings. And it deals with the “triangle of interdependent proceedings”: (1) electronic discovery proceedings; (2) admissibility proceedings concerning electronic records as evidence; and, (3) proof of compliance with authoritative standards for electronic records management technology. There is therefore an integration of law and ERMS practice in these six areas: (1) the laws of evidence; (2) the electronic commerce legislation; (3) the personal information protection and privacy laws; (4) the guidelines for electronic discovery in legal proceedings; (5) National Standards of Canada concerning electronic records management; (6) the records requirements of government agencies such as the Canada Revenue Agency.