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RECMGMT-L  December 2002

RECMGMT-L December 2002

Subject:

Re: Defining a record

From:

John Montana <[log in to unmask]>

Reply-To:

[log in to unmask]

Date:

Fri, 13 Dec 2002 11:06:35 -0500

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (105 lines)

The problem with attempting to define "record" is that
it means different things in different contexts.  Thus,
when the term "record" is used in a courtroom, it means
something different than when the same word is used in
normal business parlance or in the IT world. This can't
be overcome simply by drafting a new definition, for
the simple reason that the definitions are already in
place, e.g., the business record rule cited by Peter K.

What we can do, and what is necessary, is to know what
the definitions are and what they mean, and to clearly
articulate which meaning and which context is being
referred to.  For example, I often come across policy
documents, typically about e-mail and its "record"
status, which confuse the general administrative
definition (the pieces of recorded information I use in
my business are my records) with the legal definition
(at or near the event, etc., see Peter K's e-mail).

Those incoming e-mails may be your records for
operational purposes, and they certainly have some sort
of legal status in court, but it is highly unlikely
that you will persuade a court in a common law country
that they are your "business records" for the purposes
of the court.  They are something else.  And like it or
not, you can't define away these distinctions.  Each
definition is there to serve a particular purpose,
without regard to other definitions or purposes.

With respect to Mr. Fresko's particularized
comments, the difficulty is resolved in two ways:

In civil law countries, these annoying evidentiary
rules really don't apply.  A court can pretty much
consider any piece of evidence it thinks important,
regardless of whether it meets some definition.

In places such as the U.S. and U.K., that glorious
English invention The Common Law resolves the issue.
No statute or rule is complete without its attendant
body of case law.  Thus, the questions posed by Mr.
Fresko have been resolved, to wit:

Fresko Marc wrote:


 > So, I suppose something like an invoice or a production
 >  record, produced automatically by a computer or a
 >  manufacturing machine is not a record?  Or do we
 > need to consider such hardware as being a judicial
 >  "person"?
 >


This posed a bit of a thorny question when automated
records first came to the attention of courts.  There
was quite a bit of fussing about because of the "person
with knowledge" issue, but the bottom line is that
machine generated records have had the legal status of
their had-generated counterparts since at least the
1970's in the U.S. via case decision.  This has been
enhanced in recent years by the adoption of electronic
commerce legislation in many countries explicitly
recognizing the use of completely automated systems for
capturing data and completing transactions.

 >
 >> It must be made in the course of a regularly conducted
 >>  business activity;
 >>
 >>
 >
 > So if the transaction is "irregular" it isn't a record?
 >  Where I am (Europe) I take "irregular" to mean
 > things like illegal or out of the ordinary.
Wouldn't
 > it be simple if records of illegal transactions are
 >  ruled not to be records because they record
 > irregular acts! Or does "irregular" mean something
 >  different in the US context?
 >

This theory has been tested in court many times,
chiefly by mobsters trying to keep their own records
out of their own criminal prosecutions.   Courts have
repeatedly held that records from illegal businesses
are admissible in the same manner as other "buisiness
records"  for basically the same reason:  Moneymaking
activities, legal or otherwise, require sound records
if they are to be successful.  Therefore, those records
constitute an accurate representation of the activities
of the enterprise.


--
John Montana
Cunningham & Montana, Inc.
29 Parsons Road
Landenberg Pa 19350
610-255-1588
610-255-1558 fax
[log in to unmask]

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