The Sedona Canada Principles are Very Inadequate on Records Management and for Electronic Discovery

67 Pages Posted: 26 Nov 2014  

Ken Chasse

Independent

Date Written: November 25, 2014

Abstract

The Sedona Canada Principles — Addressing Electronic Discovery (hereinafter, the “Sedona Canada”) is very similar to the American text, The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production, Second Edition. The Sedona Canada text contains no recognition of the completely dependent relationship of electronic discovery and admissibility of evidence proceedings, upon electronic records management systems technology and its National Standards of Canada for electronic records management. Nevertheless, it is now the leading standard governing electronic discovery in Canada, and part of the enacted law and practice directions of electronic discovery in the province of Ontario. For many years the author has worked with experts in electronic records management systems technology, and in the drafting of the national standards for electronic records management that their work is based upon.

Conclusion: because it lacks the necessary conceptual foundation, Sedona Canada is a very inadequate standard. That conceptual foundation is made up of a “triangle of interdependent concepts” upon which the efficacy of the use of electronic records in legal proceedings depends: (1) “the system integrity” concept of the Evidence Acts: records integrity requires proof of electronic records system integrity; (2) the “proportionality” principle of electronic discovery proceedings; and, (3) “the prime directive” of the national standards for electronic records management technology: “an organization shall always be prepared to produce its records as evidence.” That is the conceptual foundation that the Sedona Canada text lacks.

And therefore it cannot adequately serve the triangle of interdependent proceedings: (1) electronic discovery; (2) admissibility of evidence proceedings; and, (3) proof of compliance with authoritative standards for electronic records management systems (such as Canada’s National Standards).

A paper record can exist without its records system; an electronic record cannot. Like a drop of water in a pool of water, an electronic record in electronic storage is dependent upon its electronic records management system (its ERMS) for everything. Pre-electronic paper records technology and electronic records technology are different technologies — the latter is not merely a speeded-up and more convenient version of the former. Therefore they require different legal infrastructures.

Because of that “drop in a pool of water dependence,” records integrity should require proof of records system integrity. That is the “system integrity” concept. It is the basis of the “admissibility” rule of the electronic records provisions of the Evidence Acts in Canada. “System integrity” is defined by the principles and practices established by national and international standards for electronic records management. But they are not referred to in Sedona Canada, and almost none of the case law refers to them because proof of records system integrity is not required. As a result, if expert opinion evidence were used as electronic records are now used as evidence, there would be no proof of, nor cross-examination in regard to, the qualifications of expert witnesses, which would result in the use of evidence that has an unacceptably high probability of unreliability. Similarly, the “qualifications” of electronic records are not adduced nor examined. They are the qualifications of the ERMS’s from which the electronic records come — their “systems integrity.” That is why admissibility should require proof of records integrity by way of proof of records system integrity.

Bad records management can prevent accessing all relevant records. If a party is not made accountable for the state of its ERMS, the “proportionality principle” of electronic discovery proceedings can be made a fraudulent defence with which to justify inadequate production and discovery. Because of the complexity of electronic records systems, and the absence of laws of general application requiring ERMS’s be kept in compliance with established authoritative standards of records management, the law and practice of electronic discovery is very vulnerable to such fraud, and vulnerable to the long lists in this article of very serious and common records management and software defects. Sedona Canada is inadequate in its treatment of these facts. Therefore Sedona Canada will often produce inadequate electronic discovery, and inadequate use of records as evidence, and therefore, inadequate “justice.”

Therefore records management is not to be considered a mere facilitator or helpmate for applying rules of electronic discovery and admissibility. At best, the legal literature in Canada on electronic discovery assigns proper records management that lower “facilitator and helpmate” function and not that of a mandatory requirement of the law. Standards-compliant electronic records management should be a matter of “legal enforcement,” and not merely “a good business practice.” Electronic records technology, like motor vehicles technology, requires adequate regulation by law, otherwise it is dangerous and damaging. The use of motor vehicles has it; the use of electronic records does not.

Keywords: Sedona, Sedona Canada, Sedona Principles, system integrity concept, electronic records, electronic discovery, proportionality, admissibility, national standards for electronic records management, electronic records management systems, triangle of interdependent concepts, triangle of interdependent p

Suggested Citation

Chasse, Ken, The Sedona Canada Principles are Very Inadequate on Records Management and for Electronic Discovery (November 25, 2014). Available at SSRN: https://ssrn.com/abstract=2530515 or http://dx.doi.org/10.2139/ssrn.2530515

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