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Recordkeeping Guidelines in Support of Litigation

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Context:

Information resources are used in an ever-growing inventory of legal actions, statutory claims, government wide investigations and audits. The production of documents for claims and actions, as required by provincial and federal Rules of Civil Procedure or Rules of Court, can represent an increasing financial burden to departments.

Potential risk arises in situations where departments may be unable to identify, locate, list, and maintain information resources or demonstrate effective management of their information resources. The costs and potential risks related to document production could have significant consequences on federal public administration, as well as for public confidence in government.

These guidelines address:

• A procedural approach to the obligation to identify, locate, and list information resources directly related to legal claims and actions, ensuring their maintenance and sustainability over the period they are required for that purpose.
• Implementation and removal of a preservation request on information resources related to litigation, or the requirements of a commission of inquiry.
• Disposition processes and procedures to support the lifecycle management of information resources subject to a preservation request.

Table of Contents

Concepts in Discovery

• What are Information Resources?
• What is Discovery, Including Electronic Discover (e-Discovery)?
• What is a Preservation Request?
• What is a Legal Hold?
• How is a Preservation Request Implemented?
• Who May Request a Preservation Request?
• Developing Recordkeeping Requirements
• Role of Best Practices
• Sedona Canada Principles
• Electronic Records as Documentary Evidence
• Electronic Discovery Reference Model
• Components of a Discovery Process
• Considerations in the development of departmental or agency discovery process

What is a Preservation Request?

A preservation request (hold) is a communication issued as a result of current or anticipated litigation or commission of inquiry which suspends normal lifecycle management processes, including disposition of information resources.

Electronic Discovery Reference Model

Title: Electronic Discovery Reference Model
Left side of image: Volume
Right side of image: Relevance
A flowchart indicates the following stages from the left side (above the word Volume) to the right side (above the word Relevance): Information Management; Identification; Preservation/Collection; Processing/Review/Analysis; Production; Presentation.

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