The 'Records Management Lawyer' — A Specialist in a Necessary Major Field of the Practice of Law

Abstract

This article is relevant to all jurisdictions that use electronic records as evidence. Electronic records are now produced by most human interactions. But the legal infrastructure of guidelines and case law that controls the use of electronic records as evidence in Canada is very inadequate because it ignores these facts and concepts: (1) electronic records technology, and pre-electronic paper records technology are different technologies — each technology needs its own legal infrastructure, otherwise it will cause injury and inadequate “justice”; (2) the large number of serious defects that are very frequently found in electronic records management systems (ERMS’s), and in the software by which they operate; (3) the “system integrity concept” — records integrity requires proof records system integrity, which concept is the basis of all work done by experts in ERMS’s; (4) the electronic records provisions of the Evidence Acts require proof of ERMS “system integrity” for electronic records to be admissible evidence; (5) the National Standards of Canada and international standards for electronic records management, which provide the principles, and guidelines by which the existence and quality of the “system integrity” of an ERMS can be determined; (6) the need for a different procedure that can solve the high cost of the “review” stage of electronic discovery proceedings; and, (7) because it contains these defects, the text, Sedona Canada Principles — Addressing Electronic Discovery, which dominates the guidelines that control electronic discovery proceedings in Canada, provides inadequate procedures for those proceedings, and their impact upon admissibility of evidence proceedings. ERMS technology and its uses are too sophisticated and complex for the Sedona Canada text. Electronic records are the most frequently used kind of evidence. “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. They are needed to make litigation available at reasonable cost.Compare: if the burden of proof, “proof beyond a reasonable doubt” were replaced with a lesser burden of proof, the resulting conviction may nevertheless appear to be accurate on the facts as presented, but it isn’t “justice.” Now, the way electronic discovery and admissibility proceedings concerning electronic records are conducted, they too appear to produce sufficiently accurate results on the facts as presented, nevertheless, because the integrity of the electronic record systems in which such records are stored is not being investigated and challenged, those proceedings have an unacceptably high probability of not doing “justice.” To answer, “well, we’ve had no trouble before,” is to ignore the fact that the present strategy and procedure upon which litigation proceedings concerning the use of electronic records are based, has never been adequately challenged or justified before. As a result, the required efficiency of the law overrides the quality of its results.