Newest Addition of Electronic Discovery Principles Opens for Public Comment
As technology and the Internet of Things advanced and expanded at a torrid pace throughout the early 2000s, the litigation world struggled to keep up with the pace. Discovery rules that had long been in place created expensive and inefficient outcomes when applied to the sheer volume of data that was now being created. A single Plaintiff could make broad discovery requests requiring a corporate Defendant to spend huge sums of time and money on discovery production through all of their technological sources, often in sums disproportionately large to the value of the litigation itself. In an effort to address the biggest challenges to discovery presented by advancing technology, The Sedona Conference created The Sedona Principles.
The Sedona Principles, first introduced in 2007, have become the most influential and often-cited guidance on electronic discovery (“E-discovery”). In short, The Sedona Principles are 14 principles that help guide the application of traditional discovery rules to electronically stored information, or “ESI”. The main focus of the Principles is on balancing the costs and burdens of production of ESI, meet-and-confer conferences between opposing sides to limit the scope of E-discovery as much as possible at the outset, good-faith efforts to both preserve and produce E-discovery materials, and the application of sanctions on a party who fails to meet their preservation, production, or good-faith obligations. The Principles have been so influential that they have been the basis for amendments to the Federal Rules of Civil Procedure.
In March of 2017, following four years of work, The Sedona Conference released The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production for public comment. Although the new edition still contains 14 main principles, the wording of some principles as well as the corresponding commentaries have been updated to reflect changes in the world of E-discovery since 2007. Most notably, the new edition addresses technology-assisted review, or “TAR,” which has become a major player in the E-discovery world as a tool to ease the burden of scouring countless pages and bytes of information.
As has been made clear in case law across the country and abroad, judges are becoming more and more expectant of attorneys to be familiar with the appropriate E-discovery processes, and of party litigants to know their data preservation obligations. Familiarization with the newest Sedona Principles is a great place for any attorney or party litigant to start.
The new Sedona Principles will be open for public comment through June 30, 2017, and a final version is expected to be published by late 2017. You can read the new principles by clicking here.