The Dependence of Electronic Discovery and Admissibility Upon Electronic Records Management

1. The Conceptual Foundation for the Use of Electronic Records

The concepts and arguments developed below have been facilitated by what I have learned from experts in electronic records management. The following three analogies should be the foundation concepts for all that is written and said about the discovery and admissibility of electronic records:

1. An electronic record (an e-record) is merely an electronic impression upon an electronic storage device, which is but a part of an electronic records management system (an ERMS). An e-record in its ERMS, is like a drop of water in a pool of water. Like a drop of water, an e-record is dependent upon its ERMS (its “pool”) for its: (a) existence; (b) accessibility; and (c) integrity. A pre-electronic paper record is not dependent upon its records system for any of these three factors. Therefore the laws and practice as to discovery and admissibility of evidence, must be different for e-records than they are for pre-electronic paper records. So far, the Canadian statutory law of admissibility is different in 11 of Canada’s 14 jurisdictions, and the regulatory law of electronic discovery (e-discovery) is different. But the understanding as to what an e-record is has not changed. That is why ERMSs are not considered in the caselaw.

2. Using an e-record for any “legal” purpose without enquiring into the quality of electronic records management of the ERMS in which the record is stored, is like using an expert witness without enquiring into the qualifications of that expert. Without such qualifications, the worth of the expert’s evidence cannot be assessed. Such use of expert evidence would be negligence. Similarly, the worth of the evidence provided by an e-record cannot be assessed without evidence as to the state of records management of the ERMS in which the e-record is stored. Its “qualifications” are those of its ERMS. Therefore, law and practice should move quickly to the day when use of an e-record for any purpose having legal consequences, without regard to the quality of the records management of the ERMS in which it is stored, should also be considered an act of negligence. If an ERMS is small, such concern would not need a records management expert, but should not be ignored.

3. Stepping up to a new technology requires that it be controlled by new laws and regulations, otherwise it will cause injury, damage, and unfairness. For example, going from a horse-powered transportation system to a motor vehicle-based transportation system has required a vast amount of new laws, regulations, and enforcement personnel, including police officers, judges, and lawyers. Without all of that “legal infrastructure,” motor vehicle transportation would be too dangerous to use. Similarly, going from pre-electronic paper-based records management systems, to our present ERMSs, is stepping up to a new technology. But the present legal infrastructure for this new technology is inadequate. Therefore it will cause injury, damage, and unfairness. Unfortunately, the probability of any of those three negative consequences happening, being consequences to be prevented by “doing justice,” will not be known nor adequately assessed at the time of decision-making.

The text, The Sedona Canada Principles—Addressing Electronic Discovery (January 2008), lacks this conceptual foundation. As a result, it is not an adequate text for electronic discovery.[1] An inadequate understanding of technology makes the law based upon it inadequate and possibly damaging.

2. The “System Integrity” Concept

Nonetheless, lawyers and judges on reading the above paragraphs might answer incredulously, “the high cost of electronic discovery must be reduced; therefore the issues must be limited to the electronic records themselves and the particular devices that may contain them.” My answer is: “Electronic technology and paper technology are different technologies; the former is not merely a speeded-up version of the latter. Electronic discovery cannot be made as simple and inexpensive as pre-electronic paper discovery because: (1) the integrity of an e-record is dependent upon the integrity of its ERMS, but the integrity of a pre-electronic paper record is not affected by its records management system; (2) electronic technology has made the making of records much less expensive and time-consuming, therefore ERMSs quickly become voluminous; and, (3) every electronic communication creates a record. Pay the price, or don’t use the technology. Pay the price or go back to using horses.”

The “system integrity” concept that is in the electronic records provisions in 11 of the 14 Evidence Acts in Canada,[2] dictates that the use of an e-record as evidence requires an assessment of the records management of the ERMS in which it is stored—“records integrity” requires proof of “systems integrity.” That is the foundation concept of the work of experts in electronic records management. And it is the foundation concept of the National Standard of Canada for electronic records management: Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005, which is largely ignored by the legal profession and the caselaw of e-discovery and admissibility.[3] That “system integrity” concept should therefore be the foundation concept of everything that lawyers and judges do with e-records. It is a consolidation of the above three analogies.

Because there is no law of general application requiring institutional ERMSs be maintained in compliance with the national standard, defects that can interfere with the existence, accessibility, and integrity of e-records are very numerous and very common. Present law and practice provide no protection against such defects.[4] Therefore, during e-discovery proceedings concerning large ERMSs, opposing lawyers should be asking one another: “Is your client’s electronic records management system in compliance with the National Standard of Canada for electronic records management, and if so, when was the last time it was so certified by an expert in electronic records management?” Small ERMSs may not need expert certification, but should be prepared to answer to the national standard.

The “proportionality” principle has its place in nullifying demands for discovery from sources that can be identified as not being reasonably accessible because of undue burden or cost, and in controlling the time and expense related to e-discovery proceedings. But it must be compatible with upholding the “system integrity” concept. It should not protect such “undue burden or cost” that has been created by bad records management. Otherwise, it will often be used as the basis for dishonest claims of “disproportionality” due to: (1) the frequency of records management defects; (2) how very common poor ERMS maintenance is, particularly so because many organizations find that they can “get along quite well” using only their most recently made records, even though very often in litigation, or comparable demands for proof, it is the older records that are important; (4) the strong temptation to avoid the substantial cost of bringing a large ERMS up to standard; and, (5) the ease of presenting a supporting technical records management report that lawyers and judges are not equipped to challenge. If that limitation is not imposed, “proportionality” will make bad records management a good litigation strategy, and good records management a bad litigation strategy. That would hinder the development of the use of e-records technology, which in turn would hinder the development of “records management law” as a major field of the practice of law. That will be necessary.[5]

The “prime directive” of the national standard states: “An organization shall always be prepared to produce its records as evidence.”[6] A party who dishonestly deals with records or any part of the ERMS in which they are stored would not be in compliance with the “system integrity” concept, nor with the national standard. “System integrity,” the “prime directive,” and the proportionality principle—together they form a triangle of interdependent concepts; “the discovery triangle.” That is what is missing from the Sedona Canada Principles text.

3. The Necessary Legal Infrastructure

The legal profession should be helping the world move to the day when having large ERMSs certified at least once per year, as being in compliance with the national standard or with international standards, is a routine part of e-records management, and whenever there is any significant change to an ERMS; e.g., mergers and acquisitions making necessary the melding of two ERMSs into one. Then, failure to produce such certification would raise a rebuttable presumption of inadequate production on discovery, and inadmissibility of e-records as evidence. Issues concerning records management and the “system integrity” concept could be dealt with in less than minutes by a simple exchange of certificates of compliance. The onus of proof would thereby be placed upon the possessor of the ERMS, rather than upon an opponent to show that the other party’s records management has caused inadequate production on discovery, and an inability to satisfy the requirements of admissibility. With but small exception, the caselaw stands against giving such access to an opposing party’s ERMS or part thereof.[7] We all have to have our motor vehicles checked for safety and vehicle emissions. Large ERMSs produce an equally important and voluminous “traffic.” A proactive system of compliance is necessary; the present reactive system for complaints takes no account of the dangers described above.

Two of the four components for the necessary legal infrastructure are already in place: (1) Canada has an authoritative national standard for e-records management, which is based upon well established international standards; and, (2) there is a developed profession of experts in e-records management. The other two can be quickly put in place; (3) a procedure whereby the Canadian General Standards Board, being the sponsor of the national standard, can licence experts in e-records management as being competent to provide certifications of compliance with that national standard; and, (4) a standard form of certificate, placed in the national standard, for certifying compliance with it. Such certification work has been done for many years by experts in e-records management. But if it is to make e-discovery and admissibility proceedings adequately respectful of the ERMS technology upon which they are based, it needs the formalization, recognition, and authority of law. For example, s. 5 in Part 1, Division 1 of PIPEDA,[8] “Protection of Personal Information,” makes mandatory compliance with the, “principles set out in the national standard of Canada entitled Model Code for the Protection of Personal Information, CAN/CSA-Q830-96,” in Schedule 1. A similar relationship in law should be established between e-discovery and admissibility proceedings, and the National Standard of Canada for electronic records management.

The development of such legal infrastructure is necessary given: (1) the dependence of every legal service upon e-records; (2) e-records are the most frequently used kind of evidence; and, (3) other widely used areas of the law such as privacy and access to information, electronic commerce, taxation, and criminal law, are dependent upon e-records. Technology needs legal infrastructure, and legal infrastructure needs lawyers. Therefore lawyers must be cognisant of the technology underlying the laws in regard to which they provide legal services. The present practice concerning electronic discovery and admissibility are not.

[1] See: Ken Chasse, “Electronic Discovery—Sedona Canada is Inadequate on Records Management—Here’s Sedona Canada in Amended Form” (2011), 9 Canadian Journal of Law and Technology 135.

[2] For example., s. 34.1(5),(5.1) of the (Ontario) Evidence Act, R.S.O. 1990, c. E.23, and s. 31.2(1) of the Canada Evidence Act R.S.C., 1985, c. C-5, and in Articles 2837 and 2874 of the Civil Code of Quebec, L.R.Q., c. C-1991, and ss. 2, 5, and 68 of, An Act to Establish a Legal Framework for Information Technology R.S.Q., c. C-1.1.

[3] This standard (referred to as, 72.34) was developed by the CGSB (Canadian General Standards Board), which is a standards-writing agency within Public Works and Government Services Canada (a federal government department). The CGSB is accredited by the Standards Council of Canada as a standards development agency. The Council certifies that standards have been developed by its required procedures. 72.34 incorporates as “normative references,” relevant standards of the International Organization for Standardization (ISO) in Geneva, Switzerland. It was proclaimed by the Council to be a National Standard of Canada in December, 2005. It can be obtained from the CGSB’s website; online: <>. A brief summary of 72.34 appears in the article cited in note 2 supra, see Appendix A at pp. 164-166.

[4] For a list of the common defects and how they can be dealt with, see the article cited in note 2 supra at pp. 143-148, being, “Part III. The Common Defects of Electronic Records Management Systems that Undermine Disclosure and Discovery,” and in the article cited in note 6 infra, Appendix A, pp. 25-28.

[5] See for example: Ken Chasse, “Why a Legal Opinion is Necessary for Electronic Records Management Systems” (2012), 9 Digital Evidence and Electronic Signature Law Review” 17 (U.K.) (this article is written for related professionals as well as for lawyers; the writing style is meant to serve that purpose).

[6] Supra note 4 at p. 17, clause 5.4.3(c) and accompanying text. The “prime directive” continues: “This dominant principle applies to all of the organization’s business records including electronic, optical, original paper source records, microfilm and other records of equivalent form and content.”

[7] The caselaw may give access to a third party expert to look for particular documents or to check a harddrive (hard drive), a computer, or a database, but not to check the state of overall electronic records management. It isn’t asked for and the Sedona Canada Principles text doesn’t deal with it; supra notes 1 and 2 and accompanying text. Nor does the caselaw allow information as to how searches for records were done even though searches may be inadequate due to bad records management. See for example: Zenex Enterprises Ltd. v. Pioneer Balloon Canada Ltd., 2012 ONSC 7243, [2012] O.J. No. 6082, para. 8: “The first thing to note is that the Rules require a party to disclose and to produce relevant documents. They do not require a party to explain how or where the relevant documents were found or the methodology of its search for those documents.”; Warman v. National Post Co., 2010 ONSC 3670, [2010] O.J. No. 3455, 103 O.R. (3d) 174 (Ont. S.C.-Master), specific directions given at paras. 166-181; Direct Energy Marketing Ltd. v. National Energy Corp., 2013 ONSC 4048, [2013] O.J. No. 4533; 1483860 Ontario Inc. (c.o.b. Plan IT Search) v. Beaudoin 2010 ONSC 6294, [2010] O.J. No. 5313 (Ont. S.C.-Master).

[8] Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5.

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