Discovery evidence is delayed or unable to be produced because of the inaccessibility of the data. Backup tapes are not be found, or are erased, recycled or invariably reused.  Because the emails requested are either never found or destroyed  courts have found that it was more likely that they existed than having not existed. In 2006, the U.S. Supreme Court's amendments to the Federal Rules of Civil Procedure created a category for electronic records that, for the first time, explicitly named emails and instant message chats as likely records to be archived and produced when relevant. The rapid adoption of instant messaging as a business communications medium (See Instant Messaging section on business use) during the period 2005-2007 has made IM as ubiquitous in the workplace as email and created the need for companies to address archiving and retrieval of IM chats to the same extent they do for email.

With electronic message archiving in place for both email and IM it becomes a fairly simple task to retrieve any email or IM chat that might be used in e-discovery. Some archiving systems apply a unique code to each archived message or chat to establish authenticity. The systems prevent alterations to original messages, messages cannot be deleted, and the messages cannot be accessed by unauthorized persons.

Also important to complying with discovery of electronic records is the requirement that records be produced in a timely manner. The changes to the Federal Rules of Civil Procedure were the culmination of a period of debate and review that started in March 2000 when then Vice President Al Gore's fundraising activities were being probed by the United States Department of Justice. After White House counsel Beth Norton reported that it would take up to six months to search through 625 storage tapes, efforts began to mandate timelier discovery of electronic records.

Modern message archival systems allow legal and technology professionals to store and retrieve electronic messages efficiently and in a timely manner.

The formalized changes to the Federal Rules of Civil Procedure in December 2006 and in 2007 effectively forced civil litigants into a forced compliance mode with respect to their proper retention and management of electronically stored information (ESI). The risks litigants face as a result of improper management of ESI include spoliation of evidence, adverse inference, summary judgment, and sanctions. In some cases, such as Qualcomm v Broadcomm, attorneys can be brought before the bar and risk their livelihood.