- no consistent practice as to other forms of communication that create records, e.g., video and audio recordings, instant messaging, cellphone (mobile) communications;
- no “retention and disposal” program for records lifecycles;
- years after a merger or acquisition, the records system is still operating according to the conflicting rules of its component parts;
- no chief records officer with clearly defined and adequate authority;
- “orphaned data,” i.e., records that can no longer be retrieved or read because the new technology that now operates the records system is incompatible with the old technology that created those records (a “migration program” should accompany the installation of new technology);
- poor security protection[26];
- inadequate compliance with the records management requirements of the privacy laws,[27]
- inadequate testing, auditing, and quality control;
- substantial non-compliance with the National Standards of Canada and with international standards concerning records management, and a lack of appreciation of the consequences of non-compliance.
That there may in fact be such defects is ignored, Various pieces of an electronic records system are demanded, such as, records, metadata, email, and storage devices, but there is no demand for proof records management reliability and “integrity.” Electronic discovery is conducted without a records management audit or comparable certification of records management quality. Most of the above defects alone can result in: (1) relevant records not being found and made available; (2) inadequate discovery; and, (3) the inadmissibility (unacceptability), or the absence of the necessary “weight” that gives records the appearance of sufficient reliability.
Because of such defects, a disclosure request as simple as, “produce all records on subject X,” cannot be complied with, with complete certainty as to accuracy, comprehensiveness, and knowledge of the time, cost, and disruption to be incurred by answering such request. Therefore one cannot defend oneself against disclosure and discovery demands that violate the “proportionality test” that dominates the “discovery of documents” in the Rules of Civil Procedure and in the Sedona Canada Principles. One has to know one’s records management system well, and have it operating well, to know what is disproportionate. But such defects will not be known if system documentation showing the state of the records management system is not kept or demanded by an opponent. A records management system should be regularly “internally audited,” and periodically independently, “externally audited.”[28]
There is also an important “auditing consequence” for defective records systems. An auditor/accountant in testing the “internal controls” of a records system, may find that they cannot be relied upon.[29] Then the audit cannot be conducted using statistically based random sampling methodology to test the integrity of a series of records. A full substantive audit has to be done—which entails 100 % verification. If cross examination of a records manager revealed that no reliance could be placed on the system and that a full substantive audit had to be done, that in itself would give significant support to an argument that the records from that records system should not be relied upon. The records system lacks "system integrity." Therefore the “system integrity test” of the electronic records provisions of the Evidence Acts has a strong similarity to auditing sta.
An electronic records system having the above defects cannot comply with the “prime directive” of the national and international standards: “An organization shall always be prepared to produce its records as evidence.”[30] Its chief records manager cannot assert in good faith, that a comprehensive, accurate, and precise search of its records holdings is possible. In turn, it cannot comply with the “system integrity test” by which the admissibility of electronic records is to be determined.[31]
10. Disclosure and Discovery
Such defects mean that disclosure and discovery cannot guarantee that all relevant records, information, and storage devices have been revealed. In criminal cases this serious defect is magnified by any law that limits disclosure to “the police investigative file.”[32] Police officers are not records managers, nor familiar with the “litigation hold” that freezes normal records management operations, as required by the Sedona Canada Principles when legal proceedings are anticipated.[33] They are now part of the law of civil litigation, but unknown to criminal practice.[34] By the time the accused person receives the “disclosure package,” the opportunity to save relevant records and information from destruction may well have past. The “investigative file” is not a concept or a device designed to serve the right to make “full answer and defence,” nor the right to a “fair trial,” nor the right to be presumed innocent until proved to be guilty beyond a reasonable doubt. And motions for further production must be “particularized” so that they are not “fishing expeditions”—an unattainable requirement when one doesn’t have access to the records system, nor know what it might contain or did contain. To answer in defence of the existing disclosure practice, “we haven’t had any trouble before,” is not a valid answer when there has been no challenge before that has been informed by knowledge of the nature and practice of electronic records management and its national and international standards.
The prosecutor of a case dependent upon records, when handing over the “disclosure package” to lawyer for the accused person may be compliant with the law, but not with the requirements of good practice and its ethics if “willfully blind” by failing to question how its contents were obtained and what more should and could be in it. Why not require prosecutors to demand proof from the police that the records system from which the records were obtained, does not have the above defects and is compliant with the established standards for electronic records management? What of a motion for production that states and requires only that—proof that the records system from which the alleged “key records” were obtained does not have those defects, and is in compliance with established standards of records management? Surely that is sufficiently particularized and beyond the prohibited “fishing expedition.” How could it not be sufficiently particularized given that there is no other authoritative source for defining “system integrity,” it being the test of admissibility?[35] Present disclosure law and practice in effect reverses the burden of proof beyond a reasonable doubt and thereby increases the probability of wrongful convictions.
11. Amendments to make clearly Relevant Evidence of Electronic Records Management
There is a need for amendments to the records provisions of the Evidence Acts.[36] But such amendments don’t occur until a court decision causes a crisis, as happened when Myers v. D.P.P. (H.L., 1965),[37] caused the business record hearsay exceptions to be added to the Evidence Acts in Canada.[38] Those provisions have been in the Evidence Acts since the late 1960’s, but their major defects have not been remedied by legislative amendment or case law (court decisions).[39] And the electronic records provisions have been in the Evidence Acts in Canada since 2000, but there are still no decisions providing analysis of their key phrases such as, “the integrity of the electronic documents system.”[40] And they were enacted more than 40 years after the business record provisions, and at least 40 years after electronic technology showed that it would soon dominate the production of business records.[41] Why have such defects not been remedied? Because that which doesn’t need to be decided, doesn''t get decided, nor fixed until case law declares it to be “broken.” Lawyers consent to the admissibility of each other’s records (to save time and costs), so issues do not get raised and decided. And very few lawyers know enough about records management principles and practices to mount effective challenges to the admissibility and “weight” of records.[42] And such challenges are perceived to require expensive expert investigation, advice, and testimony that the client and Legal Aid, public defender, or legal clinic cannot afford. Therefore, the legislative drafting mentality, “don’t fix it if it isn’t broken,” magnifies the seriousness of the shortcomings that are the absence of case law, and the absence of adequate identification and analysis of these facts and issues in our legal literature.
