A Legal Opinion is Necessary for Electronic Records Management Systems

Abstract

Because electronic records management systems (ERMS’s) technology has made electronic records a much more complicated technology than was pre-electronic paper records technology, a legal opinion as to compliance with the national or international standards of electronic records management, and with the major “legal” records requirements is now necessary. Experts in ERMS technology have long provided certifications of compliance with authoritative standards of electronic records management, but they should not be giving legal advice as to the “legal” requirements of such standards. And, legal advice is now required for ERMS’s because inter alia, records management by “good business practice” is no longer enough. Good records management is based upon “records system concepts,” and not merely upon “records concepts,” as was the previous paper records management technology. “The system integrity concept” i.e., proof of record’s integrity requires proof of records system integrity. Because a paper record in a file drawer has a system existence, it is not dependent upon its records system for anything. But because an electronic record has no physical existence, it is dependent upon its ERMS for everything, in particular, for its existence, its accessibility, and its integrity. An electronic record is like a drop of water in a pool of water — its “pool” is its ERMS. Therefore the efficacy of electronic discovery and admissibility of evidence proceedings based upon records, are dependent upon the quality of the parties’ electronic records management. Appendix A provides a list of the very common serious defects frequently found in ERMS’s — common because: (1) there is no law of general application requiring ERMS’s be kept in compliance with any authoritative standards of records management; and, (2) many organizations believe that “they can get along just fine” using only their most recently made and received records. Therefore when “compliance with standards” issues are raised, they will say, “but we’ve had no trouble before.” The necessary answer is, “that is only because you have never been challenged before.” Quite often in litigation, it is the older records that are the most important evidence in settling issues and disputes. Appendix B provides a summary of Canada’s major ERMS standard, which is heavily dependent upon international ERMS standards. “Records management law” will have to become a major area of the practice of law because: (1) records are the most frequently used kind of evidence; (2) an increasing number of major laws have records requirements; and, (3) we are now as dependent upon ERMS technology as we are upon motor vehicles technology.