Admissibility of Records Dependent Upon a Poorly Drafted National Standard
This article is about the poorly drafted proposed 2nd edition of a National Standard of Canada, which the Evidence Acts make necessary for discovery and admissibility proceedings concerning the use of electronic records as evidence. The admissibility of an electronic record requires proof of its records management “system integrity”; e.g.: Canada Evidence Act (CEA) s. 31.2(1)(a); and, Ontario Evidence Act (OEA) s. 34.1(5),(5.1). As shown by the case law, that is ignored, which is a failure to acknowledge the fundamental nature of an electronic record. Like a drop of water in a pool of water, it is dependent upon its electronic records management system (its ERMS) for everything, i.e., records integrity requires proof of records system integrity. But proof of that essential “systems integrity” requires the use of a National Standard of Canada because the “integrity” of an ERMS is a complex concept of records management principles and practices. In particular, the national standard, Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005 (“72.34”), should be involved in every discovery and admissibility proceeding concerning electronic records. Instead, in spite of those Evidence Act provisions, 72.34 is ignored (except for, R. v. Oler, 2014 ABPC 130, [2014] A.J. No. 669).
Applications for information about records management and to know how ERMSs were searched for relevant records are refused, e.g.: Zenex Enterprises Ltd. v. Pioneer Balloon Canada Ltd. 2012 ONSC 7243, [2012] O.J. No. 6082, which in effect holds (para. 8) that the state of a party’s ERMS is irrelevant to electronic discovery proceedings. There are a few cases in which but a few aspects of records management are considered; see: R. v. C.M., 2012 ABPC 139 (paras. 49-53); Siemens Canada Limited v. Sapient Canada Inc. 2014 ONSC 2314 (paras. 145-157); and, R. v. Nde Soh, 2014 NBQB 20 (paras. 20-31). But rules as to the preparation of discovery plans (e.g., Ontario Rules of Civil Procedure 29.1.03(4)) do not require production of such records management information, even though adequate proof of “systems integrity” for admissibility, and adequate and “in good faith” production on discovery, cannot be assured without it.
To determine the degree of compliance of an ERMS with 72.34, experts in ERMS technology apply 208 tests. That degree of complexity means that “systems integrity” cannot be defined by the electronic records provisions of the Evidence Acts themselves, but rather by 72.34. Therefore the proponent of admissibility should be required to prove the compliance of the adduced record’s ERMS with 72.34. However, seriously poor ERMS management is very common because: (1) there is no law of general application requiring compliance with 72.34; and, (2) many organizations believe that they can “get along just fine” using only their most recently made and received records. So, sustained compliance with 72.34, which ensures the continued existence, accessibility, and integrity of old as well as new records, is widely ignored. And errors in the millions of lines of software code that each ERMS program and device depends upon are also very common. See the descriptions of such errors in the first two sections of, “’Records Management Law’-A Necessary Major Field of the Practice of Law-A Summary” (pdf download from the SSRN). (The full article is published at, (2015), 13 Canadian Journal of Law and Technology 57-100.)
As a result for example, because the application of the “proportionality principle” of electronic discovery proceedings as directed by The Sedona Canada Principles—Addressing Electronic Discovery (January 2008), ignores the state of records management and the critically important “drop of water in pool of water” relationship between every electronic record and its ERMS, that principle makes bad ERMS management a good litigation strategy, and good ERMS management a bad litigation strategy. That is because bad ERMS management can result in records, that hurt a party’s position, being lost or destroyed, or accessed only by way of very expensive updating of the party’s ERMS, and therefore not having to be produced by that party because a request to produce them will be ruled a “disproportionate” request because of such self-induced records management difficulties. But good ERMS management that is in compliance with 72.34, will make production of all relevant records easily done.
Note that there is a draft 2nd edition of Sedona Canada available for public review—see: the “February 2015 Public Comment Version” (pdf). It contains the same misconceptions, being based as it is upon: (1) the pre-electronic concept of a record, as symbolized by a piece of paper in a file drawer (instead of a drop of water in a pool of water); and, (2) the traditional view that discovery is not to be used to determine the quality of evidence. A paper record is not affected by its file drawer or by all of the file drawers and cabinets in its paper records system. Therefore the state of records management of paper records systems is irrelevant to issues concerning the discovery and admissibility of their pre-electronic paper records.
But an electronic record, not having a physical, tangible existence as does a paper record, is at the complete mercy of its ERMS for everything, including its existence, accessibility, and integrity. And a single ERMS can now be spread over several electronic mobile, as well as stationary records systems, and devices, and 3rd party utilities such as “the cloud” services. And the ownership of its many electronic devices may be split and shared among employers, and employees’ “BYODs” (“bring your own device,” devices). And “BYOC” (bring your own cloud) refers to the practice of employees using public or private cloud services to store their organizations’ records. BYOCs and BYODs have to be linked if records that are stored on personal mobile devices are to be accessed through the internet.
As a result, record systems are no longer single, stationary units as are paper records systems. ERMSs are infinitely more complex and therefore can enable one to be much more capable and successful in the committing-without-detection of torts concerning the spoliation of evidence—the intentional or negligent loss and destruction of records in circumstances of pending or probable litigation. It is a technology without regulation, with the result that it gives the parties far more control over the efficacy and honesty of electronic discovery proceedings than the law, and lawyers and judges are capable of providing. Therefore, records management standards now have to focus on records management control and not simply on in-house records systems. And such ERMS complexity should make mandatory the production on discovery of information as to the state of “ERMS 72.34 compliance,” and as necessary evidence for admissibility. Otherwise, the efficacy and honesty of such proceedings is an illusion and a pretense.
Sedona Canada, and most lawyers and judges, do not yet treat paper records technology and electronic records technology as being different technologies, as are bicycles and motor vehicles, and not simply comparable to the addition of motors to bicycles. And the addition in 1999-2000, of the (still ignored) electronic records provisions’ required proof of “systems integrity” in the Evidence Acts, was not simply another chapter added to the same old story, but rather a very different story requiring different rules and practices for discovery and admissibility proceedings. See these articles (pdf): (1) “Admissibility of Electronic Records Requires Proof of Records Management System Integrity”; (2) “The Sedona Canada Principles are Very Inadequate on Records Management and for Electronic Discovery”; (3) “A Legal Opinion is Necessary for Electronic Records Management Systems”; (4) “Electronic Records as Evidence”; and, (5) “Solving the High Cost of the ‘Review’ Stage of Electronic Discovery”.
Therefore, 72.34 is an extremely important national standard, particularly so because electronic records and information management technology enables every electronic interaction, communication, and movement of information to automatically produce an electronic record, any one of which could be related to a legal service or proceeding, and become a piece of evidence, records now being the most frequently used kind of evidence. That great power of automation is what has caused the unmanageable time and expense problems of the “review for relevance and privilege” stage of electronic discovery proceedings. It is a problem that should, but hasn’t yet afflicted criminal proceedings. 72.34 was declared to be a national standard by the Standards Council of Canada (“the Council”) in December 2005. (See: Developing Standards within the Council’s website.)
A draft second edition of 72.34 has been developed by the Canadian General Standards Board (CGSB). Its 60-day public review period will end on November 15, 2015. For the reasons that have made it a poor draft standard, I, along with the other lawyer who specializes in this area of law, resigned from its CGSB drafting committee and the committee’s working group, and I as the Chair of the committee.
Since 1978, I have acted as a legal advisor in the creation and updating of 72.34 and the other records management national standard, Microfilm and Electronic Images as Documentary Evidence CAN/CGSB-72.11-93 (“72.11”), derived from which, more than 50 compliance tests are applied. And since 1988, based upon the application of 72.34 and 72.11, I have worked with experts in records management servicing clients’ ERMSs. That involves writing legal opinions as to, for example, the melding together of two large ERMSs as is made necessary by a merger or acquisition, or as to creating, amending, and certifying compliance with 72.34 of the ERMSs of large institutions, i.e., to provide assurance that the resulting ERMS can meet the records requirements of designated major laws. Although its “legal section” is out of date, 72.11 is still the foundation of the imaging industry—the large industry that converts pre-electronic paper records into electronic records. That identifies a major reason for enacting the electronic records provisions that are in 11 of the 14 Evidence Acts in Canada, including Book 7 of the Civil Code of Quebec, i.e., so that electronic records, such as those created by way of such conversion of paper records by imaging into secure electronic storage, will in law be “original records.”
The source of the “troubles” that have made the draft 72.34 (2d) to be of poor quality is an agreement between CGSB and a government department, to create a draft 2nd edition for submission to the Council within an unreasonably short time, in exchange for funding. CGSB, like all SDOs (standards development organizations) is responsible for developing the content of a draft standard, and the Council is not, although it is the authority that declares the draft standards submitted to it by SDOs to be National Standards of Canada. The agreement, and the procedures it has caused CGSB to impose upon the drafting committee’s working group, violate all three of the foundation principles of the process of “voluntary standardization,” created by the Standards Council of Canada Act (s. 4), and the Council’s CAN-P-1:2012 text, Program Requirements for the Accreditation of Standards Development Organizations and for the Approval of National Standards of Canada, which is treated as having the authority of a regulation created by way of the Act. Its Part 1 establishes the requirements for the accreditation of organizations to be SDOs; and Part 2, the requirements for the approval of National Standards of Canada.
Those three foundation principles are: (1) operate independently from government; (2) serve the public interest (not government interest); and, (3) standards development procedures shall be based upon consensus—the achieving of consensus among all interested parties (“consensus” as defined by the CAN-P-1:2012 text, pp. 21-22). Instead, CGSB has acted as though it were developing a piece of government property with which to solve a government records management problem, instead of public property with which to create, alter, and manage all ERMSs, private as well as public. SDO’s are to develop national standards; not government standards.
72.34 and 72.11 are the bases of certifications of compliance of ERMSs provided to the clients of experts in records management. Those certifications can be the bases of transactions involving millions of dollars of property, and important rights and privileges. For example, my providing the “legal opinion” part of certifications of compliance of university ERMSs, made necessary by a provincial government’s request for such certifications. So, certifications based upon faulty national standards could result in expensive and damaging legal liability for private and public interests, and all agencies involved in the creation and updating of those national standards.
The following corrupt purposes have not been part of CGSB’s current 72.34 (2d) project. But their necessary procedures have been. If an organization can directly or indirectly “buy” the procedures to be used to draft a national standard, so as to satisfy its own needed timetable, it might similarly “buy” the content of a standard. That could be discretely done by financing a “standards development project” for a particular amendment to a national standard that favored the products or status of the provider of funding. A discrete selection of the members of the working group would follow. CGSB’s website for buying standards (pdf copies) reads like a products catalogue and not one of standards for the regulation of sophisticated and complex technologies as is that of 72.34. Just as the imposition of a licensing process facilitates the recognition of a profession and therefore an increase in the fees charged by such newly designated professionals, one could similarly elevate the value of one’s products or services by giving them an unique compliance with a national standard, which compliance, and resulting competitive advantages, are not matched by the products or services of one’s competitors.
Also, controlling the changes made to a national standard would be a much easier and cost-efficient way of solving one’s compliance problems than doing what is necessary to comply with the standard. For example, maintaining an ERMS in continuous compliance with a standard such as 72.34 is much less expensive than bringing it into compliance only after several years of compliance-neglect. The longer the neglect; the greater the cost, and exponentially so, the greater the size and complexity of the ERMS. Or perhaps the risks of innovating could be decreased if the “right” changes were made by a new edition of a national standard.
And for an advantage in litigation, to raise an argument for opposing the admissibility of an opponent’s records based upon a failure of standards-compliance, one’s own ERMS has to be ready for a reciprocal attack. Because there is no law of general application requiring ERMSs to be kept in compliance with any authoritative standard, most are not. (A problem that could easily be solved for legal proceedings by amending subsections such as, s. 31.5 CEA and s. 34.1(8) OEA, and s. 41.6 of the Alberta Evidence Act (AEA), to state that “systems integrity” can be established by proof of compliance with 72.34.) An even greater advantage could be gained by having one’s ERMS brought into compliance with a new edition of 72.34 before its contents were widely known or applied.
Controlling the changes made by a new edition of 72.34 as to what it requires for “compliance,” would require controlling the membership of the committee and its working group doing the drafting. Such corrupted selection of members in exchange for funding would be the purpose of an agreement to achieve a designated content. Although they weren’t used for such purposes, the procedures used by CGSB in this 72.34 (2d) project would make achieving them quite possible.
Changes to a national standard that would involve millions of dollars for a producer of goods or services, or the power and prestige of a large institution, need only be small changes. For example, the phrase “prime directive” identifies the most important principle of 72.34. It states: “an organization shall always be prepared to produce its records as evidence,” (clause 5.4.3(c) of 72.34 (p. 17); and, section 4 (for microfilm) and subsection 4.1.2 (for electronic images) of 72.11 (pp. 13 & 21)). Therefore it is well entrenched in the principles and practices of ERMS experts for whose field 72.34 and 72.11 were created. But it is not an important phrase for the editors of the drafts of the proposed 2nd edition of 72.34, they not having had any “in the field” experience using 72.34 and 72.11 to service clients’ ERMSs. As a result, “prime directive” has been replaced by, “primary principle.” To those of us who have worked in the 72.34 field for many years, that’s like changing “STOP” signs to be “HALT” signs, or “ARRÊT” signs to be “STOP” signs.
But in the drafting of the proposed 72.34 (2d), the CGSB-imposed procedures, used to obtain speed of completion instead of quality of content, have for that purpose alone produced a poor draft standard containing misstatements of the law. However, a number of those procedures, more skilfully and discretely employed, could well facilitate the altering of content for corrupt commercial, government, or other self-serving purposes.
Clearly a more professional standards development process is needed for national standards as important as 72.34. And, as all societies become more dependent upon electronic records and information management technology, more federal, provincial, and territorial regulatory laws will be needed. To be effective, they will have to be as complex as the technology they regulate. Therefore, just as the electronic records provisions of the Evidence Acts state that in order to function properly, they need standards such as 72.34 (e.g., s. 31.5 CEA; s. 34.1(8) OEA; and, s. 41.6 AEA), those new laws will have to depend heavily upon new national standards. Their creation will fall within CGSB’s standards development jurisdiction. The result could be legislation held to be invalid or ignored, because it is dependent upon incompetently drafted national standards. Drafting and defending such legislation will require a better standards development process.
Consider in comparison, the massive increase in the size and complexity of the legal infrastructure of laws, agencies, officials, police forces, educational facilities, courts, judges, and lawyers made necessary by motor vehicle transportation’s replacing horse-powered transportation. The corresponding increases in legal infrastructure necessitated by electronic records and information management technology will be much greater and develop much faster. Inter alia, the “records management lawyer” will be a necessary specialist for adequately serving those clients that have large or complex ERMSs.
A copy of the draft 72.34 (2d) can be obtained from CGSB by email request sent to this address:
ONGC.CGSB@tpsgc-pwgsc.gc.ca (Its public review stage ends on November 15, 2015.)
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