Sedona Principles and Our Digital Ethos

According to Australian data research specialist Dr. Richard Ferrers, every two years we are globally creating 90% of all the planet’s data; not only that, but even back in 2015 this exponential algorithm had operated for the past thirty years. It is only expected to accelerate. Indeed, we are now so wholly defined as a society by our digital content that the fundamental unit of discovery, the document, has been replaced by the term “ESI”: electronically stored information. And while the federal rules still govern, the preeminent standard for managing the unique complexities and dynamics of e-discovery is a collection of digitally-based principles known as the Sedona Principles.

Started in 2002, the Sedona Principles direct the storage, preservation, management, and production of ESI in the discovery process, as well as protocols for managing data on a daily basis in the course of ordinary business, even before the appearance of any legal dispute on the horizon. Especially in matters of complex litigation, ignorance is no excuse, and failure to comply—either by counsel or counsel’s corporate client—may be and often is actionable in the courts.

The Third Edition of the Sedona Principles, issued in January of 2018, is the newest and governing set of standards regarding e-discovery. The publication in its entirety is available here.

A comprehensive analysis of each of these Principles and a survey of how courts have ruled on them could easily consume more words than everything appearing on this website. For ease of utility and reference, the mere text of each Principle is set forth below; further exploration of the Principles, if desired, can be engaged in the above-linked publication.

There are a total of fourteen Principles. The amended Third Edition Principles are as follows:

Principle 1 – Electronically stored information is generally subject to the same preservation and discovery requirements as other relevant information.

Principle 2 – When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(1) and its state equivalents, which requires consideration of the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Principle 3 – As soon as practicable, parties should confer and seek to reach agreement regarding the preservation and production of electronically stored information.

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.

Principle 5 – The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that is expected to be relevant to claims or defenses in reasonably anticipated or pending litigation. However, it is unreasonable to expect parties to take every conceivable step or disproportionate steps to preserve each instance of relevant electronically stored information.

Principle 6 – Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.

Principle 7 – The requesting party has the burden on a motion to compel to show the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.

Principle 8 – The primary sources of electronically stored information to be preserved and produced should be those readily accessible in the ordinary course. 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.

Principle 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 electronically stored information.

Principle 10 – Parties should take reasonable steps to safeguard electronically stored information, the disclosure or dissemination of which is subject to privileges, work product protections, privacy obligations, or other legally enforceable restrictions.

Principle 11 – A responding party may satisfy its good faith obligations to preserve and produce relevant electronically stored information by using technology and processes, such as sampling, searching, or the use of selection criteria.

Principle 12 – The production of electronically stored information should be made in the form or forms in which it is ordinarily maintained or that is reasonably usable given the nature of the electronically stored information and the proportional needs of the case.

Principle 13 – The costs of preserving and producing relevant and proportionate electronically stored information ordinarily should be borne by the responding party.

Principle 14 – The breach of a duty to preserve electronically stored information may be addressed by remedial measures, sanctions, or both: remedial measures are appropriate to cure prejudice; sanctions are appropriate only if a party acted with intent to deprive another party of the use of relevant electronically stored information.

The most significant amendment to the Principles involves their adoption of the concept of Proportionality set forth in Fed. R. Civ. P. 26(b)(1) and its derivative in state statutes. Proportionality demands consideration of the importance of the issues in dispute in the litigation, the amount in controversy, the resources of the respective parties, the importance discovery plays in resolution of the claims, and whether the burden and/or cost of such discovery would likely outweigh its potential benefit.

Under the FRCP, proportionality is now an element of the scope of discovery, under amended rule 26(b)(1). E-discovery is thus driven by the proportionality analysis in all its aspects.