1.　　Analysis of records management is Necessary—Electronic Discovery and Admissibility are interdisciplinary

　　To use electronically-produced records as evidence, differences in the law among countries isn’t relevant. What is important is knowledge of the nature of electronic records management and electronic records. They are very different than paper records management and paper records. As in China, Canadian court cases, textbooks, and digests of the law are inadequate in their treatment of the use of records as evidence because they do not analyze these facts and concepts:

　　1.　　 The reliability and “integrity” of an electronic record is completely dependent upon that of the electronic records system in which it is recorded or stored. This is the “norm” and foundation principle for records for electronic discovery[2] and as evidence.

　　2.　　 Therefore issues as to the admissibility (acceptance) of evidence[3] and procedures of electronic discovery should involve evidence and proof of the state and quality of electronic records management.

　　3.　　 The electronic records provisions of the Evidence Acts in Canada create a “system integrity test” of admissibility, i.e., they require proof of “integrity of the electronic record system in which the record is recorded or stored.”[4] Therefore, in order for electronic records to be used as evidence, there must be evidence of the state of records management. Whatever a country’s laws state, this is a fact of electronic records management that must be dealt with by the courts.

　　4.　　 The international standards of the Organization for Standardization (ISO) (and in Canada, the National Standards of Canada) for electronic records management are the only authoritative source with which to define the meaning of “system integrity.” But these standards are not being analyzed nor emphasized to show their importance to the legal issues concerning admissibility and electronic discovery.[5] The existence of these standards is merely mentioned. But not dealt with are these important facts: (1) the authoritative nature of their creation and accreditation by the Standards Council of Canada, and their recognition by the International Organization for Standardization (ISO); (2) they are the only source with which to interpret and apply the electronic record provisions of the Evidence Acts; and, (3) an inability to comply with them will very likely mean: (a) inadequate electronic discovery; (b) the unavailability of records as evidence; and, (c) the refusal of the courts to accept them as evidence (i.e., they will be inadmissible evidence). These standards state, “an organization shall always be prepared to produce its records as evidence.”[6] That requires that records systems always be kept in compliance with the laws that depend upon them for records, and with the National Standards of Canada. But there is no verification during proceedings concerning admissibility and electronic discovery that this principle, and the others in the national standards that follow from it, are being complied with.

　　5.　　 The result is that records systems now exist in an environment of “legal compliance”—they must comply with the many laws that make demands of them and are dependent upon them in order for those laws to operate properly, and in compliance with the recognized standards of records management. No longer is it sufficient for a records system to be operated according to “good business practice.” That is the concept underlying the “usual and ordinary course of business” test of admissibility contained in the business record provisions of the Evidence Acts.[7] That distinction and transition in records management concepts, procedures, and standards is not dealt with in Canadian legal literature on the admissibility and electronic discovery of records.

　　6.　　 The “triangle of interdependence” is not dealt with. That is the interdependent nature of the issues and rules as to, admissibility, electronic discovery, and records management. And, like any triangle, the weakness of any side or angle determines the strength of the triangle as a whole. The rules of evidence affect the scope of discovery, which in turn affects what is available to be used as evidence. And both are dependent upon the quality of records management.

　　7.　　 The Sedona Canada Principles—Addressing Electronic Discovery,[8] which provide authoritative guidelines for conducting electronic discovery, contain nothing about records management systems, their quality and management, and the dependent nature of admissibility and electronic discovery upon them. Nevertheless, it is a treatise that is part of the law that governs electronic discovery.[9]

　　If our legal literature is inadequate, then most likely lawyers and judges are performing inadequately in regard to: (1) issues as to the admissibility and “weight” (credibility; probative value)[10] of electronic records; and, (2) their electronic discovery? And most likely lawyers are not advising their clients:

　　(1) to have their records systems prepared to produce records as evidence at all times;

　　(2) to require their records managers be prepared at all times to give evidence as to the state of their records systems; and,

　　(3) of the importance to issues of discovery and admissibility of evidence of compliance with the National Standards of Canada as to electronic records management.

　　In section 9 below, is a list of commonly found defects in the records management systems of very substantial and reliable organizations. Those defects can render uncertain the comprehensiveness, accuracy, and precision of electronic discovery—most of those defects can do so alone, as well as in combinations. And therefore they: (1) reduce the cost-efficiency of performing electronic discovery; (2) diminish the completeness and quality of the evidence that is records; and in turn, (3) they affect the efficacy of the law and of the rule of law. The “triangle of interdependence” makes discovery and evidence no more reliable and efficient than its weakest side or angle of the triangle—evidence, discovery, and the quality of records management are very interdependent. Its importance to the reliability of records as evidence is being ignored as though “an inconvenient truth.”

　　This situation exemplifies the serious criticism stated by the Law Reform Commission of Canada 35 years ago in its Report On Evidence:[11]

　　The law of evidence functions because it is often ignored. Surely this is not good enough. For it means that the law is unevenly applied, a problem that is all the more serious where opposing parties are not equally matched.

　　The law of evidence is being ignored in that there isn’t a thoroughgoing application of its rules, but rather, a convenient interpretation and application.[12]