Electronic storage is now more secure and more reliable than maintaining hard copies of files. Electronic storage also enables lawyers to practice with little to no disruption in instances where they cannot go into their office (e.g., a fire or flood).
The Law Society of Alberta does not have an express policy regarding cloud usage or electronic storage. For more information about exercising due diligence to meet your obligation of confidentiality, please review The Basics of Cloud Computing and the Law Society of British Columbia’s Cloud Computing Checklist.
- Lawyers have an obligation to ensure they maintain confidentiality over their clients’ records throughout the file and after it has ended.
- Lawyers must exercise due diligence when choosing any service provider to store confidential client information.
- Lawyers should inform their clients about cloud storage and obtain their consent if it is being stored outside Canada.
- Consider the format and future readability of the documents.
- Confirm that the stored records are accessible.
- Confirm who can access the stored records. For example, if the records are on servers in the United States, whether they can be subpoenaed under American legislation despite solicitor-client privilege.
- Consider whether outside service providers are likely to continue in business and what happens to firm documents if they do not.
- Carefully read the service agreement.
- Consider transitioning to a more “paperless” policy on a go forward basis.
- Confirm that digital data is appropriately removed from all discarded firm computers and devices.
Finally, it is also important to consider evidentiary issues regarding the admission of electronic records into evidence. A lawyer seeking to introduce parts of their electronic file into evidence must be able to prove the authenticity of that file. The relevant provisions of the Alberta Evidence Act in relation to the admissibility of electronic records are:
41.3 A person seeking to introduce an electronic record as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be.
Application of the best evidence rule
41.4(1) Subject to subsection (3), where the best evidence rule is applicable in respect of an electronic record, it is satisfied on proof of the integrity of the electronic records system.
(2) The integrity of an electronic record may be proved by evidence of the integrity of the electronic records system by or in which the information was recorded or stored, or by evidence that reliable encryption techniques were used to support the integrity of the electronic record.
(3) An electronic record in the form of a printout that has been manifestly or consistently acted on, relied on or used as the record of the information recorded or stored on the printout is the record for the purposes of the best evidence rule.
41.5 For the purposes of section 41.4(1), in the absence of evidence to the contrary, the integrity of the electronic records system in which an electronic record is recorded or stored is proved
(a) by evidence that supports a finding that at all material times the computer system or other similar device was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic record, and there are no other reasonable grounds to doubt the integrity of the electronic records system,
(b) if it is established that the electronic record was recorded or stored by a party to the proceedings who is adverse in interest to the party seeking to introduce it, or
(c) if it is established that the electronic record was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not record or store it under the control of the party seeking to introduce it.
41.6 For the purpose of determining under any rule of law whether an electronic record is admissible, evidence may be presented in respect of any standard, procedure, usage or practice on how electronic records are to be recorded or stored, having regard to the type of business or endeavour that used, recorded or stored the electronic record and the nature and purpose of the electronic record.