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Canadian Journal of Law and Technology

Authors

Ken Chasse

Keywords

Sedona Canada, electronic discovery, e-discovery, records management

Abstract

A paper record can exist without its records system; an electronic record cannot. To use, corrupt, or destroy a paper record, one needs physical access to the records system wherein it is stored. But to use, corrupt, or destroy an electronic record one merely needs electronic access to its records system, from anywhere. Therefore any set of rules or principles for controlling the use of electronic records for any purpose, including electronic discovery, should incorporate the established policies and practices of electronic records management.

As to cost, rules of electronic discovery are needed with which to punish par- ties with “sanctions” for not maintaining their electronic records systems in compliance with authoritative standards of electronic records management — to sanction when inadequate records management interferes with electronic discovery or otherwise damages parties’ interests. Such compliance greatly reduces the cost of, and increases the effectiveness and fairness of doing anything that can be done with electronic records. Therefore, by thus incorporating records management into the law of electronic discovery, discovery is made more effective and is better equipped to control its costs.

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