Electronic Records as Evidence

Abstract

Electronic records are completely dependent upon their electronic records management systems (ERMS's) for their, existence, accessibility, and integrity. Therefore they, and their ERMS's are a very different technology than pre-electronic paper records and paper records systems. That difference in technology is ignored in the case law and practice concerning electronic discovery and admissibility proceedings in Canada. The "system integrity concept" means, "records integrity requires proof of records system integrity." That system integrity concept is the basis of the admissibility rule in the electronic records provisions which are in 11 of the 14 Evidence Acts in Canada (10 provinces, 3 territories, and the federal jurisdiction). However, the words, "integrity" and "electronic records system," being technical records management concepts, are intentionally not defined. Therefore, the National Standard of Canada for electronic records management, "Electronic Records as Documentary Evidence" CAN/CGSB-72.34-2005 ("72.34"), should be used in all legal proceedings using electronic records as evidence to provide such definitions and related principles and required practices concerning electronic records management. But in fact, 72.34 and the system integrity concept are not referred to in the leading text controlling electronic discovery proceedings, the "Sedona Canada Principles -- Addressing Electronic Discovery." The "prime directive" of 72.34 states: "An organization shall always be prepared to produce its records as evidence." "System integrity," the "prime directive," and the "proportionality principle" of electronic discovery -- together they form a triangle of interdependent concepts; "the disclosure and discovery triangle." That is what is missing from the Sedona Canada Principles text, i.e., the necessary conceptual foundation.This article discusses the necessary legal infrastructure for the efficient use of electronic records evidence. In contrast, if expert opinion evidence were used in the way that electronic records are used as evidence, presentation of the qualifications of the expert would not be necessary, and cross-examination as to such qualifications would not be allowed. The "qualifications" of an electronic record are those of the ERMS in which it is stored and of the quality of its records management. That is ignored in the case law. The reason is that electronic records and ERMS's are still viewed as being merely a speeded-up and more convenient version of pre-electronic paper records technology -- like merely adding a motor to a bicycle, the technology is still "bicycle technology," which is a fundamentally wrong conception of electronic records and ERMS's. Because the information on a paper record is written on a tangible, physical medium of storage, paper, a paper record is not dependent upon paper records system for anything. But an electronic record is not recorded on a tangible, physical medium of storage, and is merely an electronic impression upon an electronic storage device, therefore it is dependent upon its ERMS for everything, like a drop of water in a pool of water.This article also provides, in summary form: (1) a list of points that should be used to argue and determine the admissibility of electronically-produced records and their disclosure and discovery; (2) a list of the serious defects that are very commonly found in ERMS's; (3) a summary of 72.34; and, (4) a list of the business record and electronic record sections in the 14 Evidence Acts in Canada. The article is based upon the author's many years of experience working with experts in electronic records management, by writing legal opinions that accompany such experts' reports concerning their analyses of the ERMS's of large institutional clients in Canada. The author's published writings on these subjects are set out in the footnotes.