Electronic Records as Evidence

Abstract

This article provides a discussion of these factors concerning the use of electronic records as evidence: (1) the serious defects very commonly found in electronic records management systems (ERMSs); a long list of them is provided; (2) points that should be argued in relation to the admissibility of electronically-produced records and their discovery and disclosure; (3) a summary of the National Standard of Canada, Electronic Records as Documentary Evidence CAN/CGSB-72.34-2017, and how such standards can be used; (4) the unreliability of software and its error rates — software that produces evidence such as records; and, (5) a list of the business record and electronic record provisions in the 14 Evidence Acts in Canada.

Electronic records are completely dependent upon their electronic records management systems (ERMSs), for their existence, accessibility, and integrity, i.e., “records integrity requires proof of records system integrity.” That “system integrity concept” makes electronic records and ERMSs a very different technology than pre-electronic paper records and paper records systems. That difference in technology is ignored in the case law and in proceedings concerning electronic discovery and admissibility of evidence, in Canada. The system integrity concept is the basis of the admissibility rule in the electronic records provisions that are in 11 or the 14 Evidence Acts in Canada (10 provinces, 3 territories, and the federal jurisdiction). But so far, it isn’t applied that way because the consequences of the difference in technology isn’t appreciated.

The words, “integrity” and “electronic records system,” being technical records management concepts, are not defined in such legislation. Therefore, the National Standard of Canada for electronic records management, Electronic Records as Documentary Evidence CAN/CGSB-72.34-2017 (“72.34-2017”), could well be used in all legal proceedings using electronic records as evidence, to provide such definitions, and related principles, and practices concerning electronic records management. But in fact, 72.34-2017 and the system integrity concept are not used in the leading text controlling electronic discovery proceedings, the Sedona Canada Principles — Addressing Electronic Discovery 2d. The “primary principle” of the 72.34-2017 national standard states: “An organization shall always be prepared to produce its records as evidence.” “System integrity,” the “primary principle,” 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. It arises from the fact that electronic records are dependent upon their records systems for everything; like a drop of water in a pool of water. The drop can be only what the pool lets it be. A paper record is not dependent upon its file drawer for anything concerning its content.

This article discusses the necessary legal infrastructure for the efficient use of electronic records as 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 witness 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 — the quality of its records management maintenance. That is ignored in the case law. The reason is that electronic records and ERMSs are still viewed as being merely a speeded-up and more convenient version of pre-electronic paper records technology — like adding a motor to a bicycle. The technology is still “bicycle technology,” which is a fundamentally wrong conception of the transition from paper records to electronic records and their ERMSs.

Because the information on a paper record is written on a tangible, physical medium of storage, which is paper, a paper record is not dependent upon its paper records system for anything. But an electronic record is not recorded on a tangible, physical medium of storage. It is merely an electronic impression on an electronic storage device. Therefore it is dependent upon its ERMS for everything. Therefore information as to the state of records management should be available in all legal proceedings involving the use of electronic records.

This article is based upon: (1) the author’s many years of experience working with experts in electronic records management, writing legal opinions that accompany such experts’ reports concerning their analysis and maintenance of the ERMSs of large institutional clients in Canada; and, (2) many years experience as a trial lawyer using records as evidence. The author’s published writings are set out in the footnotes.

Keywords: Electronic records, electronic discovery, admissibility, standards for electronic records management, records management defects, software error rates, software unreliability.