Why a legal opinion is necessary for electronic records management systems

Ken Chasse argues the case that organizations should obtain a legal opinion from a suitably qualified lawyer to ensure it complies with the law and with relevant standards for electronic records management, because digital data is now judged by the reliability of the electronic records – thus ensuring that a digital record is no better than the quality of the records system in which it is recorded or storedIndex words: electronic records management systems; reliability – electronically-produced record; reliability – electronic records system; legal compliance; legal opinion – special knowledge and experience; records management; law of records management

The Admissibility of Electronic Business Records

The business record provisions of the Evidence Acts determine a record’s admissibility by evidence of its history, which must be the product of “the usual and ordinary course of business” (or comparable “business activity” wording). The electronic record provisions determine a record’s admissibility by the, “integrity of the electronic records system in which it is recorded or stored.” The difference is, records management (RM) based on “paper records concepts” versus “electronic records systems concepts.” The former is subjective — each business determines its own “usual and ordinary course of business”; the latter, objective — in accor- dance with authoritative standards of RM. Because of the many new laws that demand and depend upon records, electronic RM is now a matter of “legal compliance” and not merely good business practice. The business record provisions were enacted when: (1) electronic records came from stand-alone mainframe computers and not complex computer networks; (2) most of the present methods of, and reasons for making false records and damaging RM systems did not exist; for example, paper record systems cannot be damaged “remotely,” nor by software failures and error rates; and, (3) objective, authoritatively recognized national and international standards of electronic RM did not exist. The “usual and ordinary course of business” test allows every business to choose its own principles and practices of RM. Therefore it is now too subjective and vague to provide sufficient protection against the use of unreliable records as evidence. The objective, standards-based “system integrity” test must therefore become the sole test of admissibility and “weight.” Or, the business record provisions be reinterpreted so as to judge RM systems and not individual pieces of paper — an alteration perhaps more appropriately left to the legislature. The American case law is used as a comparison. And common electronic RM practices and defects are referred to because the admissibility and “weight” of electronic business records should be interdisciplinary de- terminations. That is what the “system integrity” of electronic RM requires. A list of points made appears immediately before the Appendices

Electronic Discovery- Sedona Canada is Inadequate on Records Management - Here\u27s Sedona Canada in Amended Form

A paper record can exist without its records system; an electronic record cannot. To use, corrupt, or destroy a paper record, one needs physical access to the records system wherein it is stored. But to use, corrupt, or destroy an electronic record one merely needs electronic access to its records system, from anywhere. Therefore any set of rules or principles for controlling the use of electronic records for any purpose, including electronic discovery, should incorporate the established policies and practices of electronic records management. As to cost, rules of electronic discovery are needed with which to punish par- ties with “sanctions” for not maintaining their electronic records systems in compliance with authoritative standards of electronic records management — to sanction when inadequate records management interferes with electronic discovery or otherwise damages parties’ interests. Such compliance greatly reduces the cost of, and increases the effectiveness and fairness of doing anything that can be done with electronic records. Therefore, by thus incorporating records management into the law of electronic discovery, discovery is made more effective and is better equipped to control its costs

Electronic Discovery- Sedona Canada is Inadequate on Records Management - Here\u27s Sedona Canada in Amended Form

A paper record can exist without its records system; an electronic record cannot. To use, corrupt, or destroy a paper record, one needs physical access to the records system wherein it is stored. But to use, corrupt, or destroy an electronic record one merely needs electronic access to its records system, from anywhere. Therefore any set of rules or principles for controlling the use of electronic records for any purpose, including electronic discovery, should incorporate the established policies and practices of electronic records management. As to cost, rules of electronic discovery are needed with which to punish par- ties with “sanctions” for not maintaining their electronic records systems in compliance with authoritative standards of electronic records management — to sanction when inadequate records management interferes with electronic discovery or otherwise damages parties’ interests. Such compliance greatly reduces the cost of, and increases the effectiveness and fairness of doing anything that can be done with electronic records. Therefore, by thus incorporating records management into the law of electronic discovery, discovery is made more effective and is better equipped to control its costs

Records Management Law - a Necessary Major Field of the Practice of Law

‘‘Records management law” will be a necessary area of specialization because: (1) electronic records are now produced by most commercial, communication, transmission of data, and social, formal, and semi-formal interactions; (2) therefore they are the foundation of many kinds of legislation; (3) records are the most frequently used kind of evidence in legal proceedings; and, (4) electronic records are as important to daily living as are motor vehicles, and will become more important. But the legal infrastructure of statutes, guidelines, and case law that controls the use of electronic records as evidence is very inadequate because it ignores these facts: (1) electronic records technology and pre-electronic paper records technology are very different technologies—each requires its own legal infrastructure; (2) there are many serious defects frequently found in electronic records management systems (ERMSs), and in their software; (3) there is an electronic records ‘‘system integrity” concept that has to be in the evidence laws; (4) the national and international standards for electronic records management need to provide definitions and the principles of ERMS practice necessary for the effective operation of that concept; and (5) the solution to the high cost of the ‘‘review” stage of electronic discovery proceedings requires a different strategy and procedure than what are used now. Because of these shortcomings and society’s heavy dependence upon electronic records, ‘‘records management law” is a needed specialty, and the ‘‘records management lawyer” a needed specialist. The several innovations, concepts, and arguments developed in this article have been made possible by what I have learned from working with experts in electronic records management for many years. Such innovations are needed to make all litigation available at a reasonable cost

Electronic Records as Documentary Evidence

The new electronic record provisions that are now part of almost all of the Evidence Acts in Canada are as important as any statutory law or common law concerning the use of records as evidence. They bring six important improvements to the evidentiary law of business records. It is argued, however, that their most serious defects are that they: (1) perpetuate the best evidence rule — a rule rendered redundant by electronic records and information management (RIM); (2) do not deal with hearsay issues; (3) do not cure the defects of the business record provisions in regard to electronic records; and (4) unnecessarily complicate the law. But these defects can be substantially lessened by judicial interpretation that accomplishes what the business records provisions should have accomplished. Although a topic left to a future article, this article should be read with the assumption that the electronic record provisions are interdependent with: (1) the new electronic commerce laws; (2) the new personal privacy protection laws; (3) the new electronic discovery guidelines; (4) the new National Standards of Canada concerning electronic RIM ; and (5) the records requirements of government agencies such as the Canada Revenue Agency. This article is therefore a first step in justifying the emergence of the ‘‘RIM lawyer’’ as a new field of legal practice

Electronic Records as Documentary Evidence

The new electronic record provisions that are now part of almost all of the Evidence Acts in Canada are as important as any statutory law or common law concerning the use of records as evidence. They bring six important improvements to the evidentiary law of business records. It is argued, however, that their most serious defects are that they: (1) perpetuate the best evidence rule — a rule rendered redundant by electronic records and information management (RIM); (2) do not deal with hearsay issues; (3) do not cure the defects of the business record provisions in regard to electronic records; and (4) unnecessarily complicate the law. But these defects can be substantially lessened by judicial interpretation that accomplishes what the business records provisions should have accomplished. Although a topic left to a future article, this article should be read with the assumption that the electronic record provisions are interdependent with: (1) the new electronic commerce laws; (2) the new personal privacy protection laws; (3) the new electronic discovery guidelines; (4) the new National Standards of Canada concerning electronic RIM ; and (5) the records requirements of government agencies such as the Canada Revenue Agency. This article is therefore a first step in justifying the emergence of the ‘‘RIM lawyer’’ as a new field of legal practice

Droit de la preuve appliqué au commerce électronique au Canada: droit civil / common law

Cet article traite des règles de preuve dans un contexte électronique, et souligne les différences et similitudes entre les systèmes retenus par les provinces de common law et de droit civil. Il présente certains principes généraux, ainsi qu’un bref survol du droit de la preuve face à l’avènement de l’immatériel. Il englobe une analyse des règles d’admissibilité de la preuve telles que la règle de la meilleure preuve, et l’exception au ouï-dire, ainsi que la force probante des documents électroniques. Il envisage, enfin une application pratique, soit la signature électronique.This article deals with the rules of evidence in the context of electronic environment, and emphazises the differences and similarities between systems adopted by provinces ruled by common law and civil law. It presents a few general principles and skims over the rules of evidence in the face of the advent of immateriality. It includes an analysis of the rules of admissibility such as the rule of the best evidence and the exception of hearsay as well as the probative strength of electronic documents. Finally it studies a practical application : electronic signature

Privacy and Insurance in Canada, England, and France - How Does the Responsible Insurer Put Guidelines and Procedures in Place for Retaining and Destroying Personal Information

In this article, I will be discussing records containing personal data or information, and how ‘‘guidelines and procedures” are ‘‘put . . . in place for retaining and destroying [such] information” by private-sector insurers carrying on business in Canada, England, and France. Where I discuss Canada, I use the examples of the law of Ontario — which belongs to the English legal tradition —and of Quebec — whose private law belongs to the French legal tradition. As it happens, these are the two traditions with which I have the most experience relating to personal information

Privacy and Insurance in Canada, England, and France - How Does the Responsible Insurer Put Guidelines and Procedures in Place for Retaining and Destroying Personal Information

In this article, I will be discussing records containing personal data or information, and how ‘‘guidelines and procedures” are ‘‘put . . . in place for retaining and destroying [such] information” by private-sector insurers carrying on business in Canada, England, and France. Where I discuss Canada, I use the examples of the law of Ontario — which belongs to the English legal tradition —and of Quebec — whose private law belongs to the French legal tradition. As it happens, these are the two traditions with which I have the most experience relating to personal information