Changing with the Times: “The Sedona Principles”

Changing with the Times: “The Sedona Principles”

What a difference 10 years make. For the authors of  “The Sedona Principles,” which is considered a “foundational guide for attorneys and judges confronting the novel challenges of e-discovery,” it was clear that is was high time to reassess and, if appropriate, revise the 14 Principles for a Third Edition. Specifically, they attributed the necessary update to three reasons: an explosion in electronically stored information (ESI), the ever-changing application of technology to e-discovery and the 2015 amendments to the Federal Rules of Civil Procedure (FRCP).

The Third Edition delivers updated, relevant guidance on how e-discovery should be handled. Contributors to Lexology, hailing from the law firm of Pepper Hamilton, state that the new edition, 133 pages strong, contains best practices for proportionality, specificity of requests and sanctions. They advise that litigants should consider three issues when handling e-discovery requests:

  • The proportionality analysis when addressing requests for ESI must include the scope and cost of preservation as well as the full range of costs associated with producing the information.
  • ESI discovery requests should be specific about the information sought, avoiding boilerplate language.
  • Because parties only need to preserve relevant ESI, they should define their preservation obligations early and adjust their practices throughout the case as claims and defenses develop.

In particular, the contributors summarize Principles 2, 4, 5 and 14, and their associated comments, “which incorporate the amended FRCP’s concept of proportionality and their approach to sanctions for failure to preserve ESI.” For example, Principle 4:

Principle 4: Discovery requests for electronically stored information should be as specific as possible; responses and objections to discovery should disclose the scope and limits of the production.

“Discovery requests should avoid boilerplate definitions and demands for ‘all’ emails, databases, word processing files or whatever kinds of ESI the requesting party can generally describe. Instead, the requesting party should target particular ESI that it contends is relevant to the claims or defenses and proportionate to the needs of the case. The requesting party should also identify the specific forms in which the ESI should be produced and specify any technical details, such as the need for particular fields or metadata. In federal cases, this information must be discussed at the Rule 26(f) conference and included in a discovery plan, ESI protocol or stipulation.”

Contributors to Bloomberg BNA also thoroughly parsed the Third Edition. Like the Sedona authors, they, too, acknowledge technology’s impact on our daily lives, on how organizations operate and on the storage and availability of ESI for legal disputes. They expertly highlight the significant changes to all 14 Principles. For example:

“Principle 8 has been updated substantially to address the changes over the last decade in how ESI is maintained and transmitted, and, in line with concepts of proportionality, describes a continuum of data sources from which ESI may need to be preserved and produced, ranging from those that are primary sources routinely accessed to those that are less accessible and available only through the expenditure of extraordinary resources.”

The contributors also remind legal professionals that The Sedona Conference encourages them to submit any feedback on the Third Edition to by June 30, 2017.

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