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Using electronic records as evidence | Ken Chasse

Wednesday, August 14, 2019 @ 1:50 PM | By Ken Chasse


Ken Chasse %>
Ken Chasse
Records are now the most frequently used kind of evidence in legal proceedings and for legal services.

Almost all of them come from electronic systems and devices, which are rapidly increasing in types and numbers in use. But not yet do lawyers have sufficient knowledge of such technology with which to adequately challenge the ability of such sources to produce reliable evidence — challenging them by competent cross examination and arguments as to how the rules of procedure and evidence should be flexibly applied to suit each different technology. But the technical literature stresses that we trust such sources far too much, mainly because their software has significant error rates. At the end of this article, I’ve listed some of that literature.

This article, and those cited, deal with the following factors concerning the use of electronic records as evidence:

(1) the serious defects that are very commonly found in electronic records management systems (ERMS); there’s a shockingly long list of them provided in the first article listed below;

(2) points that should be argued in relation to the admissibility of electronically produced records in discovery and disclosure proceedings;

(3) a summary of the National Standard of Canada, Electronic Records as Documentary Evidence CAN/CGSB-72.34-2017 (72.34-2017) and how such standards can be used; (Note: I have concern as to the quality of its drafting; See Innovation Canada, IP, and Dependence Upon the Standards Council of Canada);

(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 Evidence Acts of Canada’s 14 jurisdictions (10 provinces, three territories plus the federal jurisdiction).

Electronic records are completely dependent upon their ERMS for their existence, accessibility and integrity, i.e., “records integrity requires proof of records system integrity.” See that stated in effect in s. 31.2(1)(a) of the Canada Evidence Act (CEA). That “system integrity concept” makes electronic records and their ERMS a very different technology than is pre-electronic paper records and paper records management systems. 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. 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, see (subject to the note of caution above), the National Standard of Canada for electronic records management, Electronic Records as Documentary Evidence (72.34-2017). Note that s. 31.5 CEA recommends the use of such standards, as do its provincial and territorial Evidence Act counterparts.

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. (2015). (Its application is mandatory in Ontario. See Ontario Rule of Civil Procedure 29.1.03(4)).

The “primary principle” of the 72.34-2017 national standard states (in s. 5.1 (p. 9): “An organization shall always be prepared to produce its records as evidence. Continuous compliance with this standard is an essential part of the proof of the integrity of an electronic record or records system.”

“System integrity,” the “primary principle” and the “proportionality principle” of the Sedona electronic discovery text, together, form a “disclosure and discovery triangle” of interdependent concepts. 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.

But a paper record is not dependent upon its file drawer for anything concerning its existence or content.

That’s an example of why the application of the rules of evidence and procedure should be made dependent upon the nature of the technology that produces the evidence.

The articles listed below discuss 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, even though qualifications are the most determinative factor as to the quality of experts’ opinions.

The “qualifications” of an electronic record are those of the ERMS in which it is stored — the quality of its records management maintenance and of its software. That is ignored in the case law. The reason is that electronic records and ERMS are still viewed as being merely a speeded-up and more convenient version of pre-electronic paper records technology — as though it were as simple as adding a motor to a bicycle.

That is the wrong analogy to use to explain the transition from paper records to electronic records and their ERMS. It is a very different technology.

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 concerning its continued existence. But an electronic record is merely an electronic impression on an electronic storage device.

Therefore, it is dependent upon its ERMS for everything. And, unlike paper records in file drawers, electronic records do not stay stationary until accessed. They are constantly being moved by the ERMS’s operating system to make room for new records, and to prioritize position of storage to maximize speed of access, and related functions. The ability of the operating system to perform such functions without losing or destroying records, or corrupting their contained data, depends on the quality of the software and maintenance of the ERMS.

Therefore, information as to the state of records management should be made available in all legal proceedings involving the use of electronic records, and our legal education has to become more “technology aware.”

Because I’ve worked with experts in electronic records management and been involved in the drafting of related National Standards of Canada since 1978, I’ve written the following articles:

(1) Electronic Records as Evidence;

(2) Challenging Electronic Systems’ and Devices’ Ability to Produce Reliable Evidence;

(3) Electronic Discovery’s “Records Review Stage”’ Software Programs.

For 40 years, starting in 1966, Ken Chasse was a criminal lawyer in Ontario and B.C., serving as both Crown prosecutor and defence counsel. He taught law in both provinces and conducted a national consultation process for the federal Department of Justice concerning a proposal to replace the Canada Evidence Act with an evidence code that was a Canadian version of the U.S. Federal Rules of Evidence. Since January 2007, he has concentrated on developing “records management law” and among Chasse’s most important accomplishments was the creation of LAO LAW at Legal Aid Ontario. E-mail him at kchasse@fixy.org.

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