The economics of the discovery process makes it inappropriate to rely on the use of backup/archival systems to support document retention requirements and e-discovery, as
backup technologies are ill-suited to support searching for relevant messages and documents.

Yet this is precisely what lawyers face when they are called upon by their clients to support litigation that is dependent on the production of e-mails and other electronic documents.

The US Federal Rules of Civil Procedure was amended recently (December 2006) to address the issues increasingly posed by the challenges of managing discoveries where there are significant amounts of electronic documents, as well as costs associated with e-discovery.

These new rules have been described as “SOX for the CIO.”

Even without these changes, the issues related to how day-to-day document retention
policies and practices affect the outcome of litigation, has become patently obvious at the
board level. This will undoubtedly bring new interest to existing guidelines on e-discovery in Ontario and in Canada, as many Canadian companies must now consider these amendments as
they do business in Canada, or are subject by contractual terms to US laws.

This paper is a guide to understanding the role of the IT department in the management of electronic documents, and how lawyers can better support clients by proactively guiding them to use of technologies designed to support litigation.

Includes a step by step outline of a typical discovery process, with implications for both legal counsel and IT.