Transcript Slide 1

The Impact of Recent E-Discovery Think Tank Reports
The Sedona Principles & ABA Civil Discovery Standards
New York
June 30, 2004
Sponsored by Kroll Ontrack Inc.
July 17, 2015
The Sedona Principles
What is The Sedona Conference?
– A nonprofit 501(c)(3) research and educational institute,
dedicated to the advanced study of law and policy in the
areas of antitrust, intellectual property, and complex litigation
– Founded in 1997 by Richard Braman: Director
– Started as a new form of CLE: small, discussion group
settings focused on dialogue not debate
– Goal to eventually be a “think tank”
– Interim evolution to include “Working Groups”
The Sedona Principles
What is the “Sedona Conference Working Group on Best Practices
for Electronic Document Retention and Production”?
– Founded in 2002
– First Sedona “Working Group”
• No talking heads: aim is useable working papers
• Collaborative discussion, not debate
• Evolving, continuing, not static
– Currently over 100 members, participants and observers; includes
representatives from in-house; outside counsel and e-discovery
consultants. Current observers include judges (Hon. John Carroll
(ret.), Hon. Shira Scheindlin, Hon. Richard Best (ret.)) as well as
Ken Withers (Federal Judicial Center)
The Sedona Principles
What are “The Sedona Principles”?
– First work product of working group
– Draft published in 2003 for comment; revised in 2004 to
reflect numerous edits/changes; annotated version now
published by Pike & Fisher
– They are:
• Important background and roadmap of issues
• Presumptive guidance on e-discovery issues
• Flexible
– They are not:
• Absolute statements of law
• Unchangeable
The Sedona Principles
What is the impact of The Sedona Principles?
– Cited by courts (e.g., Zubulake)
– Cited in the national and local rules process (e.g., 9th Circuit
Draft Model Rule)
– Cited in numerous articles addressing e-discovery
– Cited in briefs and submissions to courts
– Used as resource in numerous judicial and legal education
programs
You need to be aware of the Principles & how they may apply to your case.
The Sedona Principles
1. Electronic data and documents are potentially discoverable
under Fed. R. Cir. P. 34 or its state law equivalents.
Organizations must properly preserve electronic data and
documents that can reasonably be anticipated to be relevant
to litigation.*
*Emphasis added for this presentation only
The Sedona Principles
2. When balancing the cost, burden, and need for electronic
data and documents, courts and parties should apply the
balancing standard embodied in Fed. R. Civ. P. 26(b)(2) and
its state law equivalents, which require considering the
technological feasibility and realistic costs of preserving,
retrieving, producing, and reviewing electronic data, as well
as the nature of the litigation and the amount in controversy.
The Sedona Principles
3. Parties should confer early in discovery regarding the
preservation and production of electronic data and
documents when these matters are at issue in the litigation,
and seek to agree on the scope of each party’s rights and
responsibilities.
The Sedona Principles
4. Discovery requests should make as clear as possible what
electronic documents and data are being asked for, while
responses and objections to discovery should disclose the
scope and limits of what is being produced.
The Sedona Principles
5. The obligation to preserve electronic data and documents
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 data.
The Sedona Principles
6. Responding parties are best situated to evaluate the
procedures, methodologies, and technologies appropriate
for preserving and producing their own electronic data and
documents.
The Sedona Principles
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 electronic data and documents were
inadequate.
The Sedona Principles
8. The primary source of electronic data and documents for
production should be active data and information purposely
stored in a manner that anticipates future business use and
permits efficient searching and retrieval. Resort to disaster
recovery backup tapes and other sources of data and
documents requires the requesting party to demonstrate
need and relevance that outweigh the cost, burden, and
disruption of retrieving and processing the data from such
sources.
The Sedona Principles
9. Absent a showing of special need and relevance a
responding party should not be required to preserve, review,
or produce deleted, shadowed, fragmented, or residual data
or documents.
The Sedona Principles
10. A responding party should follow reasonable procedures to
protect privileges and objections to production of electronic
data and documents.
The Sedona Principles
11. A responding party may satisfy its good faith obligation to
preserve and produce potentially responsive electronic data
and documents by using electronic tools and processes,
such as data sampling, searching, or the use of selection
criteria, to identify data most likely to contain responsive
information.
The Sedona Principles
12. Unless it is material to resolving the dispute, there is no
obligation to preserve and produce metadata absent
agreement of the parties or order of the court.
The Sedona Principles
13. Absent a specific objection, agreement of the parties or
order of the court, the reasonable costs of retrieving and
reviewing electronic information for production should be
borne by the responding party, unless the information
sought is not reasonably available to the responding party in
the ordinary course of business. If the data or formatting of
the information sought is not reasonably available to the
responding party in the ordinary course of business, then,
absent special circumstances, the costs of retrieving and
reviewing such electronic information should be shifted to
the requesting party.
The Sedona Principles
14. Sanctions, including spoliation findings, should only be
considered by the court if, upon a showing of a clear duty to
preserve, the court finds that there was an intentional or
reckless failure to preserve and produce relevant electronic
data and that there is a reasonable probability that the loss
of the evidence has materially prejudiced the adverse party.
ABA Standards
ABA Civil Discovery Standards
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The Standards were adopted in August of 1999 to address issues not covered
by state or federal rules of procedure
Standards 29 & 30 specifically address electronic discovery
Since 1999, a Task Force has drafted proposed amendments to the
Standards relating to e-discovery
ABA Standards
Proposed Amendments to Civil Discovery Standards:
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Existing Standard 29: Preserving and Producing Electronic Information
Existing Standard 30: Using Technology to Facilitate Discovery
New Standard 31: Effective Use of Discovery Conferences
New Standard 32: Attorney-Client Privilege and Attorney Work Product
New Standard 33: Technological Advances
ABA Standards
Standard 29: Preserving & Producing Electronic Information
3 Key Modifications:
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Stripped of language suggesting that it was taking a position as to
substantive legal doctrines
Checklist of sources of e-data and discovery added to assist practitioners
and judges
Expanded the factors for the court to consider in ordering production or
allocating costs
ABA Standards
Standard 30: Using Technology to Facilitate Discovery
2 Key Modifications:
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Clarifies that subdivision (a) applies to production in electronic form of
discovery materials that are not stored electronically
Instead of being an option, it is presumed that written discovery requests or
responses should be provided to opponents unless the parties have agreed
otherwise
ABA Standards
Standard 31: Effective Use of Discovery Conferences
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Focuses on effective use of discovery conferences to deal with e-discovery
31(a) specifies several categories of e-discovery related matters that the
parties should confer about at an initial discovery conference
31(b) identifies additional issues for parties to discuss at “meet-and-confer”
conferences when they are focusing on specific discovery demands and
obligations
ABA Standards
Standard 32: Attorney-Client Privilege & Attorney Work Product
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Applies in the common situation in which e-data must be extracted for
production by an IT expert not employed by the producing party
Suggests three alternate routes to ameliorate waiver concerns and
recommends procedures to implement them.
– Appointing an independent consultant to act as a special master
– Agreeing that production of privileged information will not effect a waiver
– Agreeing that extraction/review by an independent consultant will not effect
a waiver
ABA Standards
Standard 33: Technological Advances
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Addresses emerging technology that may not be electronically based
To the extent that information is stored by a means that is not electronic or
hard copy, Standards 29-32 may be consulted with respect to discovery of
that information
Appropriate modifications may still be made for differences in storage media