The Dependence of Electronic Discovery and Admissibility Upon Electronic Records Management
5 Pages Posted: 19 May 2014
Date Written: January 10, 2014
An electronic record is dependent upon its electronic records management system (its ERMS) for its existence, accessibility, and integrity -- like a drop of water in a pool of water. Therefore "records integrity" requires proof of "records system integrity." That is the "system integrity" concept. But the case law ignores that complete dependence of record upon records system. Therefore, if expert opinion evidence were used like electronic records are used as evidence, cross-examination on the qualifications of the expert would not be allowed. The "qualifications" of an electronic record are those of its ERMS. But the case law fails to examine those qualifications before allowing electronic records to be used as evidence. The failure to recognize that electronic records and ERMS technology is a very different technology than pre-electronic paper records technology, results in an inadequate opportunity to test the reliability of electronic records as evidence, and as adequate production on discovery. Adequate discovery should require information as to the state of compliance of the ERMS the records come from, with a recognized standard of electronic records management. Because there is no general law requiring ERMS's to be compliant with such standards, the many serious defects in ERMS's are very common. Therefore the present use of electronic records as evidence results in an unacceptably high probability of unreliable evidence. And, the Sedona Canada e-discovery texts provide an inadequate legal infrastructure for conducting electronic discovery proceedings. Provide an adequate legal infrastructure or the technology will injure people, damage property, and the judgments based upon the evidence that it produces will too often be inaccurate and therefore unfair.
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