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Livent papers weren’t sealed, trial told

November 4, 2008

Livent papers weren’t sealed, trial told

Toronto Star, October 28, 2008

John Beer, a forensic investigator for KPMG, is in hot water after admitting legal documents pertaining to the suspension of Livent co-founder Garth Drabinsky’s were susceptible to illegal tampering. Beer admitted under cross-examination that he didn’t sign the back of every piece of documentation that was removed from Drabinsky’s office in 1998.

“‘We didn’t have an opportunity at the time to go through all of the documents,’ said Beer, who said he was pressed because he had to travel to British Columbia the next day. ‘We took responsible steps given the time frame,’ he said, adding that he and another KPMG official acting for Livent removed and isolated the documents. ‘I expected that the continuity system I set up would continue,” he said.’

According to defense lawyer Edward Greenspan, someone could have tampered with the documents since the room in which they were stored was not “properly controlled.” Beer agreed with this suspicion, admitting he was unaware of who had keys to the room and that there was an absence of guards outside the proximity. It is impossible to prove that documents were neither added nor removed to the case file.

This specific case involves paper-based records, but it brings an increasingly important legal issue across industries – the ability to authenticate records (whether paper-based or electronic) for use as evidence in court. The lack of proper records management and authentication controls can cause delayed trials, increased costs and – even worse – potential inadmissibility of critical records. The documents Beer retained may never have been tampered. They may be 100 percent authentic. Unfortunately, he has no way to prove it. And appropriately, opposing counsel took advantage of this oversight.

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