The Alberta Securities Commission (ASC) is proposing a rule that would adopt specific requirements for how documents are to be provided to its staff as part of an investigation.

The commission indicates that the rule “has been developed in response to explosive growth in the use and retention of ‘electronic’ forms of information, coupled with the increasing challenges faced by securities commission investigators around obtaining, identifying and tracking records received in the course of an investigation.”

It notes that the proposed rule aims to address a couple of basic issues. First, that the information in electronic records is not accurately captured by simply printing those records. And, second, that standards for identifying, describing, and processing records, is necessary to properly manage those records. It says its rule is intended to address both of these issues in a way that is “results-oriented, flexible, and pragmatic”.

The proposal indicates that the rule aims to: ensure that electronic records are produced in electronic form; provide consistency and clarity in record-handling requirements, both for its own staff, and potential witnesses; and, to improve the process of tracking potential evidence.

It notes that the proposed rule includes a basic ‘legal hold’ requirement, which aims to create a specific obligation not to destroy or withhold requested information. It also includes a requirement for respondents to deliver records along with a cover letter that clearly lists what has been provided, cross-referenced to the source records. It imposes different obligations for physical and electronic records, noting that, “Wherever possible, respondents are strongly encouraged to produce records electronically, as they are more efficiently and effectively reviewed or searched for relevant information; and they are easier to track, store, disclose (as appropriate), and use for hearing purposes.”

“… this rule provides standards and guidance for producing records in the electronic age. While it doesn’t mean we want more information, it does mean that we want to ensure we get more accurate and complete information, and get it in a more organized manner that is more useful to everyone involved,” said Elaine Balestra, the ASC’s electronic evidence specialist.

Comments on the proposed rule are due March 17.

Notice and Request for Comment Proposed ASC Rule 15-503 Production of Records