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Electronic Discovery: The Concept and Purpose of the Sedona Canada Principles 2nd Edition

  1. Electronic records management system technology

My published paper “The Sedona Canada Principles are Very Inadequate on Records Management and for Electronic Discovery[i] criticizes the first edition (January 2008) of: The Sedona Canada Principles—Addressing Electronic Discovery (hereinafter, “Sedona Canada”) because it provides neither analysis nor description of the relationship between electronic discovery and electronic records management systems.[ii] The integrity (reliability; truthfulness) of an electronic record is dependent upon the integrity of its electronic records management system (its ERMS). That is the “system integrity” concept of records reliability, i.e., “records integrity” requires proof “records systems integrity,” which is the admissibility rule of the electronic records provisions of the Evidence Acts (e.g., s. 31.2(1)(a) of the Canada Evidence Act, and s. 34.1(5),(5.1) of the Ontario Evidence Act). That is the fundamental nature of an electronic record—it is dependent for everything on its electronic records system. It is “systems dependent” for its existence, its integrity, and its accessibility. Whereas pre-electronic paper records management technology can be symbolized by a piece of paper in a file drawer, an electronic record is like a drop of water in the pool of water that is its ERMS. Discovery is dependent upon records systems, but law and practice ignore that.

And that distance between the discovery’s simplicity and reality’s complexity is aggravated by the fact that organizations are moving away from centralized ERMS’s. Records systems are becoming a network of applications existing in-house, in mobile devices, and in centralized, shared utility services such as “the cloud.” Records do not sit in a single records management system. They constantly move among systems; transmission creating a “weak link” as to proving integrity. Therefore, rather than focusing on in-house ERMS’s, laws and records management standards will have to focus on records management, and on the amount of control embedded in records management policies, procedures, and processes. Going from paper to electronic records will require as much change in our legal infrastructure as going from horses to motor vehicles.

  1. The Sedona Canada draft Second Edition

A draft 2nd edition of Sedona Canada has been issued—the “February 2015 Public Comment Version” (pdf copy). In answer to my article, cited above, I have been told by members of the, “Steering Committee for Sedona Canada, Working Group 7 of the Sedona Conference,” the following as to what the concept and purpose of Sedona Canada is to be:

We have noted your comments that the Principles [Sedona Canada Principles] are “very inadequate” on Records Management and for Electronic Discovery. However, the Principles are not intended to place significant focus on records management (RM) or the importance or desirability of appropriate RM practices so as to be properly prepared for litigation, or on issues related to the integrity of information systems under Evidence Acts, or on the substantive law related to the admissibility of electronic records into evidence. Those issues are all important, but are largely outside the scope of the Principles. The Principles are instead focused on the discovery process in whatever circumstances litigants find themselves in. The Principles take ESI [electronically stored information] as the parties find it when litigation arises, not as how it could be were parties to pay more appropriate attention to the importance of proper RM and information governance in the first place. The forthcoming new edition of the Principles make that clear.

My reply is: this view restricts the ability of discovery to evolve to cope with the reality of records management technology. And it ignores the requirement in the electronic records provisions of the Evidence Acts that admissibility of electronic records requires proof of the “integrity of the electronic records system” in which the records are stored. To serve its purpose of reducing the time and cost of trials, discovery should require disclosure of information as to whether such requirement can be proved, i.e., information as to the state of records management. Proof of such “integrity” requires proof of the state of compliance of the records system with an authoritative standard of records management. The most authoritative such standards are those that the Standards Council of Canada has proclaimed to be National Standards of Canada.

  1. Canada’s National Standards for Electronic Records Management and amending the Evidence Acts

In footnote 243 (p. 71) of the draft 2nd edition, a number of standards for electronic records management are listed, including Canada’s National Standards. They should be the only standards referred to. Other standards are not of equal authority. Showing compliance with them may assist in achieving admissibility, whereas compliance with the national standards should definitely satisfy the “proof of records system integrity” requirement of the admissibility rule in s. 31.2(1)(a) of the Canada Evidence Act. To make that very clear, a subsection or clause should be added to s. 31.2 that states: “proof of the integrity of an electronic records system may be made by proving compliance of the system with the national standard of Canada, Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005.”[iii] A more exclusive provision would state: “In the absence of evidence to the contrary, a record stored in an electronic records system that is not proved to be in compliance with the National Standard of Canada, Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005, shall be deemed to lack integrity.” The corresponding provisions of the provincial and territorial Evidence Acts should similarly be amended.

Part 1 of PIPEDA (privacy-“Protection of Personal Information”), s. 5, does the same thing—it basis a whole body of laws upon compliance with a National Standard of Canada, the, Model Code for the Protection of Personal Information, CAN/CSA-Q830-96 (in Schedule 1 of PIPEDA).

Footnote 243 (p. 71) of the draft does not give due importance to Canada’s national standards system, in particular, recognition of the disciplining of the procedure used to obtain a proclamation by the Standards Council of Canada of draft standards sought to become National Standards of Canada. And footnote 243 worsens this error by stating: “These standards are not mandatory.” In fact, it is not possible to prove the “integrity” of an ERMS, as required by the Evidence Acts, without applying such standards. To use again the expert witness analogy set out in section 3 of my paper, footnote 243 amounts to saying that in presenting expert opinion evidence, it is not necessary that the expert have adequate qualifications because such qualifications are not mandatory—the “qualifications” of an electronic record is the state of its ERMS. Such review of the state of compliance of ERMS’s with the national standards is necessary and should not be left to the trial. Such determination by way of an “admissibility of evidence procedure” at trial is much more time-consuming than would be a mandatory requirement to produce such information at discovery.

  1. The differences in records technologies require discovery be different

Given the general lack of knowledge of ERMS technology by lawyers and judges, this “standards are not mandatory” comment and footnote 243 show that the drafters have not adequately accommodated the fact that electronic records technology and pre-electronic paper records technology are different technologies. The former is not merely a faster and more conveniently used version of the latter. ERMS technology is much more complex than pre-electronic paper records technology. Many ERMS’s operate on several million lines of software code, and it has an error rate, as do most things created by people. For example, the Windows 3.1 operating system has close to 3 million lines of software code. The Google Chrome web browser has approximately 5 million lines. The Firefox browser is near 10 million, and Windows 7 has under 40 million lines of code, which is a little less than Windows XP, and more than 10 million less than Windows Vista. And an Android phone has more than 12 million lines of code. In regard to breathalyzer machines, the Draeger 7110 device has 53,774 lines of code that print out on 896 pages. Applying the industry average of 25 errors per 1,000 lines of software code, there are potentially 1,344 defects in that code. A 2002 study commissioned by the U.S. Department of Commerce’s National Institute of Standards and Technology (NIST) concluded that, “software errors cost the U.S. economy $59.5 billion annually.”

Serious records management errors (in addition to software errors) are frequently found in the records systems of the best organizations because: (1) there is no law of general application requiring ERMS’s be kept in compliance with an authoritative standard; and, (2) many organizations ignore ERMS maintenance because they believe that they can, “get along just fine” using only their most recently made and received records. These themes are developed in my paper (sections 3 and 4 contain lists of serious records management and software errors). My experience comes from having worked for many years with experts in electronic records management systems technology, creating, altering, and repairing large institutional ERMS’s. For example, a very big and complex project occurs when a merger or acquisition involving two large organizations, requires the melding together of their very large ERMS’s. Therefore, the legal profession is ignoring the fact that “records management law” will have to be a very big and profitable field of practice.[iv]

  1. The impact upon case law

The inadequate use or maintenance of an ERMS is very likely to produce inadequate evidence. In contrast, the state of management of a pre-electronic paper records system cannot affect the existence, accessibility, and integrity of a paper record—paper records are not affected by the state of their file drawers nor by the state and use of all the file drawers and boxes used in a paper records system. That is why records system issues are absent from the pre-ERMS case law. But they definitely should not be absent, as they are, from the ERMS case law concerning the discovery and admissibility of electronic records. Therefore there is very likely to be an unacceptably high probability of judgments being based upon inadequate and faulty evidence if the use of ERMS technology to produce records as evidence is not adequately reviewed.

The existing rare case law examples of the kind of examination of an ERMS appropriate to electronic discovery and admissibility of evidence proceedings are: Siemens Canada Limited v. Sapient Canada Inc. 2014 ONSC 2314, [2014] O.J. 1930, at paras. 156-57 (OSC-Master, April 23, 2014). A much more modest and simple example of the need for evidence as to the records system that produces the evidence in question is provided by, R. v. Nde Soh, 2014 NBQB 20, [2014] N.B.J. No. 41, at paras. 20-32 (January 13, 2014). And a rare recognition of the need to apply the national standards, was the basis of the decision in, R. v. Oler 2014 ABPC 130, [2014] A.J. No. 669 (Alberta Prov. Ct., June 19, 2014). It dealt with the disclosure and admissibility of maintenance and other records concerning the Intoxilyzer 5000C, in relation to charges of impaired driving and “over 80” (ss. 253(1)(a) and 253(1)(b) of the Criminal Code of Canada). See also, R. v. C.M. 2012 ABPC 139 at paras. 47-55.

The means of detecting judgements that are unjust because of the unappealable inadequacies of the evidence upon which they are based are very poor, and therefore instances wherein they are detected are rare and unusual—see for example: R. v. Hanemaayer, 2008 ONCA 580, 234 C.C.C. (3d) 3. Therefore, it is only adequate rules of prevention, applicable to discovery and admissibility of evidence proceedings, that can provide a sufficient opportunity to apply safeguards against inadequate records being used as evidence. Unfortunately the second edition of Sedona Canada will not correct this serious inadequacy of the first edition.

Also, the 2nd edition will not direct sufficient attention to: (1) the serious, common defects of records management and of software, and their considerable worsening of the difficulty of determining the adequacy of disclosure made in discovery proceedings; and, (2) the fact that the admissibility of records is dependent upon proof of the “integrity” of the records systems in which they are stored, which requires proof of the compliance of such records systems with the National Standards of Canada for electronic records management. Information in relation to these issues should be required in discovery proceedings so as to reduce the time taken up by them at trial. If they were a required part of discovery proceedings, they could often make available summary judgment procedures. As to when summary judgment is appropriate, see: Hryniak v. Mauldin, 2014 SCC 7; and, MacDonald v. Chicago Title Insurance Company of Canada, 2014 ONSC 7457, which deal with Rule 20 of the Ontario Rules of Civil Procedure.

  1. The Solution for maintaining the efficacy of discovery

As a result, the Sedona Canada concept that the discovery process not be made dependent upon the state of records management is inappropriate for ERMS technology. In civil proceedings, discovery is not used for testing evidence. That is left to trials, which are infrequent. But the complexities and sophistication of electronic records management technology greatly magnify the ability of clients to control the use and outcome of discovery. That is an invitation to fraudulent production that won’t be detected. Discovery must evolve to cope. And the requirement of the national standards that all significant records be indexed must be enforced. Then the “records management lawyer” specialist will combine the functions of accessing and reviewing records for relevance and privilege to be a single function, by electronically searching the client’s ERMS index. That “due diligence” function will not only prevent such fraud, but also cure the problem of the high cost of the “review” stage of discovery. See the papers I cite in this article.

  1. Certifying compliance with the national standards

Also needed is a simple procedure for certifying compliance with the national standards. Two of the four components for such a certification process are already in place: (1) Canada has authoritative national standards for electronic records management, that are based upon well established international standards; and, (2) there is a well developed profession of experienced experts in ERMS technology. The other two can easily be added: (3) a procedure whereby the Canadian General Standards Board, being the sponsor of the national standards, can license such experts individually, as being competent to provide certifications of compliance with the national standards; and, (4) a standard form of certificate, placed in the national standards, for certifying compliance with them. Such certification of compliance work has been done for many years by experts in electronic records management. At discovery, records management issues could be quickly dealt with by an exchange of such certificates by the parties, or by records managers testifying or supplying affidavits as to compliance with the national standards.

  1. Applicable to all uses of electronic records

This article is applicable to all criminal as well as civil proceedings that are based upon records as evidence. Such cases are based upon electronic records management system (ERMS) technology. To provide adequate “justice,” legal infrastructure must accommodate the weaknesses and dangers of the technology upon which it is based. And given: (1) the prevalence of bad records management and accompanying software errors; and, (2) the unregulated existence of almost all ERMS’s, this article is relevant to everyone who depends upon electronic records, which is everybody. That is why the application of the National Standards of Canada for electronic records management is so very necessary. Lawyers and experts in ERMS technology could fulfill a very important need of the population, if, working together, they could make that happen.

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A pdf copy of other recent papers that I have written on electronic discovery and admissibility of records issues can be downloaded from Slaw and from the Social Science Research Network (SSRN) by way of my SSRN author’s page, or at: http://ssrn.com/author=1398484, and my Slaw author’s page, or at: http://www.slaw.ca/author/chasse/.

[i] While writing this article, very helpful comments were provided to me by, Dr. Martin Felsky, Ph.D., J.D., National E-Discovery Counsel of, Borden Ladner Gervais LLP, Toronto, and by, Dr. Luciana Duranti, Chair and Professor, Archival Studies, School of Library, Archival, and Information Studies, University of British Columbia, Vancouver, Canada.

[ii] This paper updates and revises my article, “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.

[iii] Note that Sedona Canada is made mandatory for the formation of the discovery plan by the Ontario Rules of Civil Procedure, Rule 29.1.03(4) of which states: “In preparing the discovery plan, the parties shall consult and have regard to the document titled ‘The Sedona Canada Principles Addressing Electronic Discovery’ developed by and available from The Sedona Conference.” And case law in other jurisdictions gives Sedona Canada comparable authority in regulating electronic discovery proceedings.

[iv] This national standard is currently being reviewed by a committee, of which I, Ken Chasse, am the Chair.

[v] See also the related article, Ken Chasse, “‘Records Management Law’—A Necessary Major Field of the Practice of Law,” forthcoming in the Canadian Journal of Law and Technology.

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