Testifying in court as a RIM expert witness: An interview with Uta Fox, CRM

Testifying in court as a RIM expert witness: An interview with Uta Fox, CRM

If you’re like me, you’ve likely read articles by or heard conference presentations from Records Managers in the US who have testified in court regarding their organizations’ RIM practices.  To the best of my knowledge, Uta Fox, CRM – the Manager, Records and Information @ the Calgary Police Service – is the first Records Manager to testify as an expert RIM witness in a Canadian court.

Ms. Fox testified twice before the Provincial Court of Alberta regarding electronic records admissibility issues in an impaired driving case (R. v. Oler, 2014 ABPC 130).  (For information on the judge’s admissibility ruling, see this post)

I recently interviewed Ms. Fox about her experience as an expert witness.  The following post is based on our conversation.

1. How did you become involved in this case?

Sgt. Butler is one of the Calgary Police Service (CPS) officers who maintains the Intoxilyzer 5000C records prior to their secure storage in OpenText Content Server (formerly Livelink).  The Intoxilyzer is a breathalyzer for estimating blood alcohol content from a breath sample.

The Court instructed Sgt. Butler to return to court with the ‘original’ records for the Intoxilyzer 5000C and be prepared to talk to the court about how CPS follows the Sedona Canada e-discovery guidelines.  Sgt. Butler knew he couldn’t provide the ‘original’ records because the paper/hard copy records in question were destroyed after imaging as per CPS policy and he couldn’t speak to the Sedona Canada guidelines.  So he came to see me and after some discussions with counsel, it was decided that I would accompany him when he next went to court regarding this case.

[Note: CPS’s external counsel later determined that the Sedona Canada e-discovery principles have no impact on criminal cases so CPS did not testify about them.]

2. This ruling concerns the admissibility of selected electronic records as evidence.  Which CPS records were involved in this case?

Defence counsel requested CPS to produce its records for the Intoxilyzer 5000C.  As stated in the judge’s ruling, those records include “maintenance logs, maintenance records, certificates of annual inspection, maintenance manuals, technician work sheets, and site installations work sheets”.

3. How did you prepare to testify in court?

I met with CPS staff to review the processes for creating and storing these records, and for destroying the paper/hard copy records after imaging.  I also met with legal counsel – both our in-house lawyers and external counsel – to review the types of questions I might be asked in court.

4.  The ruling states that you have “specialized knowledge necessary to render opinion evidence to the Court in connection with processes and procedures for the maintaining of the integrity of electronic records.”  What types of questions were you asked in court before being accepted as an expert witness?

I was asked about my education (I have a Master’s degree), and how long I had worked for CPS and in what capacity.  I was also asked about my RIM qualifications.  I explained that I’m a CRM (Certified Records Manager) certified by an international body – the ICRM (Institute of Certified Records Managers).  My qualifications were accepted without cross-examination by defense counsel and the judge didn’t question my qualifications either.

5.  For how long did you testify?

I testified for about 2.5 hours in total, split over two court sittings.  When testifying I was questioned by CPS counsel, defence counsel, and the judge.

6. Was this the first time you or any other CPS RIM employee was called upon to testify in court as an expert witness?

For me, this was the first time.  I believe this was also the first time a RIM employee testified as an expert witness since CPS established its Records Management Section in 1998.

7. If you could use only one word, which word best describes your experience as an expert witness in court?

“Exhilarating!  It was a lot of work, but it was exhilarating to be able to show that this is a credible discipline and our work is recognized legally.”

8. What tips do you have for other Records Managers who may be called upon to testify in court as an expert witness?

  • Make sure you understand the Crown prosecutor’s case, and the relevant facts and issues of the case.
  • Review the business policies and processes in question.
  • Be prepared to speak truthfully and use non-technical language.
  • Follow court protocol re: who to address and where to look, and learn what you can and can’t do during a recess (e.g. you cannot consult with lawyers).  Your lawyer can advise you about that.
  • Remember that what you say in the court room during a break may be recorded (at least that was the case in this court room).
  • If you don’t know the answer to a question, say you don’t know.  Don’t commit to something you’re not sure of.  Make sure you always answer only from your area of expertise.
  • Wear appropriate attire.  Again, your lawyer can advise you about that.

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    That's A Lot of Records!
    Often the requirement for a needs assessment is driven by a specific initiative being considered or an immediate problem to be solved, rather than a general desire to establish a corporate (or organization-wide) IM program. We had a client wanting to improve its management of a specific group of critical records – thousands of member files in paper, microform and digital formats containing hundreds of unique document types.
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