The Sedona Principles 1-7 By: Ryan Karle

How this relates to E-Discovery: “The Sedona Conference has been the leading voice of the legal profession in addressing all of the concerns surrounding electronic discovery.” The Sedona Principles helped shape the legal environment in which the amended Federal Rules were drafted and adopted. In return, the 2007 revision of the principles were heavily influenced by the amended rules. This revised edition of the principles seeks to synthesize the current and best thinking from the case law and the amended Federal Rules to provide practical standards for modern discovery.

Sedona Principle #1 Electronically stored information is potentially discoverable under Fed. R. Civ. P. 34 or its state equivalents. Organizations must properly preserve electronically stored information that can reasonably be anticipated to be relevant to litigation.

“An effective retention program, combined with a preservation program triggered by the reasonable anticipation of litigation, would establish the principal source of discovery material, thus reducing the need to routinely access ad review multiple sources of likely duplicative data, including backup tapes.” The committee suggests that an appropriate records and information management program would involve: Establishing an appropriate and workable retention schedule for paper and ESI. Helping business units establish practices and customs, tailored to the needs of their businesses, to identify the business records they need to retain. Addressing retention of email/v-mail/instant messaging Training individuals to manage and retain business records created or received in the ordinary course of business.

Sedona Principle #2 When balancing the cost, burden and the need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of the technological feasibility and realistic costs of preserving, retrieving, and producing electronically stored information, as well as the nature of the litigation and the amount in controversy.

Among the factors critical to the proportionality standard for e-discovery are: Large volumes of data Data stored in multiple repositories Complex internal structures of collections of data and the relationships of one file to another Data in different formats that may need to be converted in order to be reviewed Frequent changes in information technology

Sedona Principle #3 Parties should confer early in discovery regarding the preservation and production of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities.

Some examples of issues parties should seek to resolve early in this process include: The identification of data sources which will be subject to preservation and discovery The relevant time period The identities of particular individuals likely to have relevant ESI The form of preservation and production (Rule 34) The types of metadata to be preserved The use of search terms and other methods to help reduce the volume of the ESI produced Issues related to assertions of privileged and inadvertent production (clawback provisions)

Sedona Principle #4 Discovery requests for electronically stored information should be as clear as possible, while responses and objections to discovery should disclose the scope and limits of the production.

Recommendations to parties outlined in the comments: Requesting party that seeks production of ESI should clearly and specifically indicate the types of electronic information it seeks. The party should also identify the form or forms in which it wished the ESI to be produced and any particular types of metadata sought. Responses and objections by the responding party should clearly and specifically state all objections and should also indicate the extent to which production of relevant ESI will be limited. (based on undue burden or cost of production efforts) If requesting party did not specify a form or forms for the requested production, or if the responding party objects to the form requested, the responding party must identify the form it intends to use. (Rule 34(b))

Sedona Principle #5 The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant ESI.

The preservation obligation necessarily involves two related questions: When does the duty to preserve attach? What evidence, including potentially discoverable ESI, must be preserved? Preservation standard- Upon determining that litigation or an investigation is threatened or pending and has triggered a preservation obligation, the organization should take reasonable steps to communicate the need to preserve information to appropriate persons.

Sedona Principle #6 Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own ESI.

Sedona Principle #7 The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant ESI were inadequate.

Questions for Discussion: 1. Should Rule 34 inspections be allowed during the discovery process? If so, what are some of the dangers an opposing party may face during this inspection? 2. Can you foresee any other possible significant changes to the principles in the future? ie: the change from “documents” to “electronically stored information”.