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One of the joys of being a lawyer is being able to collect cartoons, plaques, and humorous stories that are aimed to pierce the stuffiness and cynicism of the legal profession. They can be very accurate at times. In a corner of my desk resides what I consider to be a particularly accurate jibe: the cartoon character Garfield wearing a blue suit coat and vest and tie, holding a briefcase in one paw and the other raised above his head with a stance reminiscent of John Travolta in "Saturday Night Fever"--with the caption "litigate, litigate--dance to the music."
The cartoonist, whether he knew it or not, struck at the heart of a problem that pervades the realm of a records manager. Litigation is part of the consequence of doing business in today's world. Government regulation compounds the burden created by litigation. When a records manager prepares a retention report, one of the criteria considered is the legal needs or implications for the organization, and this invariably involves consideration of the organization's exposure to litigation or investigation. Further, a records manager can be involved in the organization's litigation matters, either as a witness at examination for discovery or at trial. This element of a records manager's role will not be found in any job description, but an understanding of the legal system and the litigation process is critical if a records manager is to be an effective, contributing member of the organization.
THE CANADIAN LEGAL SYSTEM
The common law and the statute law is the law of the land in every Canadian province, except Quebec. The rights and duties of an organization may give rise to a cause of action--the set of facts that give rise to the legal right to sue. Enforcement of a legal right utilizing the court system includes the whole law of evidence, the enforcement of a right, rules of limitation, methods of execution and formal steps in the action. The latter, also known as procedure, are for the most part contained in the Rules of Court. Eight major steps are provided in the Alberta Rules of Court for the Alberta Court of Queen's Bench, which is similar in content to the procedural rules for the superior courts in all provinces and the rules of the Federal Court of Canada. Those steps are:
1) statement of claim or originating notice
2) statement of defence
3) reply and joinder of issue
5) procedural matters
6) pre-trial conference
ASSESSING THE DOCUMENTS
Every organization hopes that it will not be involved in litigation. Unfortunately, the opposite is true. It is critical, then, that all documents related to the issue be assessed at an early stage by the organization's lawyer. Preferably, the assessment occurs before the litigation starts. The records manager should not select the evidence as such a selection is usually unreliable. There are a number of reasons. By providing the lawyer with only the documents which are the most helpful to the organization's cause, the records manager may be depriving the lawyer of the benefits of being forewarned of any difficulties that may arise. Without all relevant documents the lawyer will be immediately hindered in his function of providing independent legal advice. The scope of the issues is commonly underestimated by non-lawyers, including records managers. Assessing relevance should be done by the person best qualified, more proficient and able to do the job most quickly--the lawyer.
Generally speaking, the lawyer will tell the organization what records are needed, when those records are to be delivered to him, and whether the original records are required, early in the litigation. Some lawyers want to review all relevant records before drafting the pleading, others will wait until it is necessary to prepare for discoveries. The organization does not have to wait for the request; in accordance with established policy or on instructions from management, a records manager can send copies of the retention schedules or copies of the records to the lawyer. Original records may be required by counsel to meet the statutory or common law requirements of the law of evidence at trial or at discovery. Prior to transferring the originals--in fact, before the threat of litigation looms on the horizon--the organization should determine whether records to be used in litigation are to be copied. The volume or the nature of the records could make the cost of copying prohibitive.
Even though records managers are not the owners of the records, they are the service custodians. Depending on the structure of the organization, the records manager may have to be an active member of the litigation team. At the very least, either counsel or management of the organization should advise the records manager of the litigation in order to give the records manager sufficient opportunity to collect and prepare the records for transfer, but more importantly to suspend the retention and disposition schedules. Destruction of documentary …