(Photo: Aldo Crusher for Legaltech News)
Perhaps the most often cited e-discovery document—from the Federal Rules of Civil Procedure amendments to cases from New York to California—is “The Sedona Principles,” a wide-ranging publication from the group of e-discovery experts at The Sedona Conference. The document ranges from entry-level topics (“What is electronic discovery?”) to the specific (reasonable and good faith efforts for the obligation to preserve electronically stored information).
There’s just one problem: The last full version of the document, version 2, was released in 2007. But now, following four years of work from The Sedona Conference Working Group 1 (WG1), the organization is releasing version 3 of The Sedona Principles for public comment.
Released under the full title “The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production,” the 116-page document features 14 different principles, which Sedona says “embody the consensus view of WG1 on a reasonable and balanced approach to the treatment of electronically stored information in the legal process.” These principles range in topic from how electronic information is handled in relation to other information (Principle 1) to the differences between responding and requesting parties (Principles 6 and 7) to sanctions and remediation (Principle 14).
Each principle is then broken down into commentaries, which Sedona claims are meant to “provide analysis and guidance to the bench and bar on the key legal doctrines and issues implicated by the Principles.”
The full text of the Principles can be found at The Sedona Conference’s website. The organization is planning on having a 90 day public comment period.
Of course, there have been a number of changes to e-discovery since version 2 was released 10 years ago” technology-assisted review (TAR) was still on the horizon at that point, as was the thought of having to collect social media and other new technologies. In the introduction to the Principles, which Sedona supplied to Legaltech News shortly before the release for public comment, the members of WG1 identified the arrival of e-discovery’s current state:
“[B]y 2017, the issues surrounding the production of ESI have grown in number and complexity. … In the interim, some hot-button issues in 2004 and 2007 essentially have become moot (such as whether metadata is even discoverable), and others have diminished in importance due to technological advances (such as having to restore and produce from back-up tapes). New issues and technologies—some not even fathomed in June 2007—now command our attention. Updates to The Sedona Principles were needed. The challenge was to create a worthy successor to The Second Edition of The Sedona Principles that would continue to be useful to the bench and bar.”
Indeed, that means some changes to the principles—primarily Principles 8 and 12, noted attorney Eric Mandel, a member of the ten-person drafting team for the Principles. The 2007 version of Principle 8, for example, referenced preserving and producing backup tapes, which is no longer a common issue for many e-discovery experts. The current version reads more generically, stating in part, “Only when electronically stored information is not available through such primary sources should parties move down a continuum of less accessible sources until the information requested to be preserved or produced is no longer proportional.”
“We now focus on a world where we’re not living with active and inactive data, and that type of dichotomy,” Mandel explained. “That’s where the world was back in 2004 and 2007—live data or backup tapes. … If you now think of the world we live in where we’re app-based with multiple devices, and we have live, active data through many endpoints, it’s a different world. That means a fundamental shift in the preservation, retention and production of ESI.”
The commentaries, though, are where the main differences between version 2 and 3 come into play. For instance, the first comment to Principle 14 on sanctions and remediation provides “Historical background and the adoption of the 2015 amendment to Rule 37(e),” among other recent changes.
Mandel said that if one were to compare version 2 and version 3 of the document side-by-side, “the actual principles didn’t change very much, other than Principle 8 and 12. Most of them were clean up and small changes. But we also realized that some of the commentary was either not aging well, or maybe wasn’t well-written or well-placed. … The commentary is intended to be a reflection more of a time than the principles. The principles are intended to be of broader, longer-term scope.”
But updating both the principles and the commentary required a fine-tooth comb. Since 2007, the Sedona Conference itself has grown significantly, in parallel with the e-discovery industry. This time, the drafting committee was writing the document with the full knowledge that it would be widely cited among e-discovery practitioners and, although not rule of law, widely practiced. According to Mandel, this meant a more stringent process was needed—and also a longer time to finalization, as WG1 has been working on some form of this document since summer 2013.
“I think that there was some awareness in 2007, but nowhere near to the awareness there was now, that every sentence had to be considered, that we had to properly arrange our sentence structure, our paragraph structure, and our footnotes so that if somebody attempted to take something out of context, very near to it would be something that would refute that,” Mandel said.
Ultimately, the goal of the drafting team was a document containing a balanced consensus of e-discovery rules so that the law can progress “in a reasoned and just way,” he explained. He was also quick to note, though, that consensus does not equal uniformity, and he expects some people to not agree with everything in the document.
“We will never be able to encapsulate a perfect position that is acceptable to every member of the plaintiff’s bar and every member of the defense bar. That’s just not going to happen. … At the end of the day, we have to live together. We have to create a world where reasonable expectations are established. We were not seeking perfection; we were seeking a reasonable and balanced view of how to move the law forward,” Mandel said.