The Accomplished Connoisseur: Professional Expertise in Support for the Corporate Law Department

Presented by: Lisa Daulby

Canadian Association of Law Librarians

May 27, 2003

Presentation Outline

• Relationship between the Corporate Archive and the Corporate Law Department

• Records Management

• Information and Communication Technology

• Documentary Evidence

• Canadian Evidence Act

• Electronic Evidence

• Conclusion

Relationship Between the Corporate Archive and

Law Department

• Common professional interest in documentary evidence.

• Manifests itself in during the incitation of legal proceedings for or against the corporation or when records are required for regulatory compliance.

The Corporate Archive

• A unique corporate asset that documents a company's origins, growth, development, visions, policy & procedures and products & services.

• The corporate archivist selects and preserves those key records that reconstruct the company's history and development.

• Less than 3-5% of all company records are appropriate for retention in a business archives.

• Enhance public and corporate appreciation of the organization’s rich heritage.

• Management and responsive dissemination of corporate information to support business decision making.

Archives-Supported Business Activities

• public relations and advertising

• policy development and evaluation

• orientation and training • employee

communications, • corporate histories &

anniversary celebrations • legal and regulatory

compliance support

Corporate Law Department’s Categories of Legal Work

• Significant transactions/sizable contracts (mergers, acquisitions, joint ventures, divestitures ect...)

• Protection of intellectual property rights (corporate trademarks, branding, patents ect…)

• Providing legal opinions on laws and regulations and internal policy initiatives such as privacy, insider trading, e-commerce, and corporate governance.

• Legal and regulatory compliance matters

Conception/ Creation

Organization/ Distribution

UseMaintenance/ Protection

Disposition

Record Life Cycle

Records Management

• Records Management is responsible for the efficient and systematic control of records from their creation, organization, use, maintenance through to their final disposition.

• Effective records management enables organization to conduct their business in an effective, efficient and orderly manner and to deliver services in a consistent and equitable manner.

(ISO Records Management Standard)

Information and Communication Technology

• Information and Communication Technology has transformed the way companies do business.

• “53% of the organizations do not include electronic records in their records management program”

• “68% of the respondents are “not at all confident” or only “slightly confident” that their organizations could successfully demonstrate that its electronic records are accurate, reliable, and trustworthy many years after they were created”

(Cohassets White paper, 2002)

Documentary Evidence -Admissibility

• Evidence is what a court will consider in deciding a case and acts to exclude unnecessary and irrelevant material (Morton, 2000).

• Documents are often considered to be inadmissible as evidence because they are considered to be hearsay.

• Business Record Exemption-business records are admissible to prove the truth of its contents if they are made near the time of the matter recorded, if they were made by someone with a personal knowledge of the matter and were obliged to do so and if they were made in the ordinary course of business.

Documentary Evidence – Best Evidence

• The Best Evidence Rule states that if the original document is available it must be produced at court.

• Has the rule “outlived” its value? Originally this rule was developed at a time when the only way to make copies was by hand, so there was always a potential for human error in making the copies. (Gahtan, 1999).

Canadian Evidence Act • Amendments and modifications to the Evidence Act

were required in order to adequately address the issues associated with electronic records.

• In August of 1998, the Uniform Electronic Evidence Act (UEEA) was adopted by the Uniform Law Conference of Canada.

• The UEEA was promoted for implementation by federal and provincial governments in the form of amendments to existing Evidence Acts to facilitate the admissibility of electronic records in legal proceedings.

• The Government of Canada implemented the UEEA by amending the Canada Evidence Act in part 3 of the Personal Information Protection and Electronic Documents Act which was brought into force on May 1, 2000.

Electronic Evidence

• Today there is no doubt about the admissibility of electronic records as evidence in legal proceedings.

• “any person seeking to admit an electronic document as evidence has the burden of proving its authenticity” Section 31.1

• The act dispenses the need for the production of original records.

• “the best evidence rule with respect to electronic records is satisfied on proof of the integrity of the electronic records system” Section 31.2(1)

• The integrity and reliability of the record-keeping system is the key to providing the integrity of the record.

• Canadian General Standards Board (CGSB) have produced a draft Electronic Evidence standard.

Conclusion

• The amendments to Evidence Act will have a profound effect on the Corporate Archive and Law Departments.

• New e-evidence requirements have information management forces which concentrate on the business processes and not on the records themselves.

• Establish electronic records management policies!• Electronic records management systems that will

effectively managed records and safeguard their integrity!

Contact Information

Lisa DaulbyPhD Student

Faculty of Information StudiesUniversity of Torontodaulby@fis.utoronto.ca

Or

Senior ArchivistRBC Financial Grouplisa.daulby@rbc.com

Thanks !