The Sedona Conference has once again written a helpful guide, this time on preservation and inaccessible data, entitled: Commentary on Preservation, Management and Identification of Sources of Information that are Not Reasonably Accessible. As usual, you can download a copy for individual use for free at The Sedona Conference’s website. For me, the most valuable idea in this commentary is the five-step analysis they call the Decision Tree for Determining ESI Preservation Obligations. It is designed to help you decide what types of ESI you need to preserve upon notice of litigation or likely litigation. My version of their decision flow chart is shown below. It is worthwhile to take a few minutes to study it.
The editors of this new Sedona publication are, Thomas Y. Allman, whom I quoted two weeks ago in my blog on Teams and the Zubulake Duty, William P. Butterfield, Matthew Hagarty, Cecil A. Lynn III, Jon A. Neiditz, Maureen O’Neill, Ira P. Rothken, and Peter B. Sloan. I highly recommend that you read this new publication and, more importantly, consult it when faced with tricky preservation issues. Although this Sedona working group is focused on ESI that is difficult to access, they rightfully claim that the five step approach they developed for preservation decisions is equally applicable to all sources of information, whether accessible or inaccessible.
In addition to the fivefold decision process shown above, this Sedona working group has devised six guidelines to help make preservation decisions. Here is their summary of the six guidelines:
Guideline 1. Where litigation is anticipated but no plaintiff has emerged or other considerations make it impossible to initiate a dialogue, the producing party should make preservation decisions by a process conforming to that set forth in the Decision Tree in Figure 1.
Guideline 2. As soon as feasible, preservation issues should be openly and cooperatively discussed in sufficient detail so the parties can reach mutually satisfactory accommodation and also evaluate the need, if any, to seek court intervention or assistance.
Guideline 3. In conjunction with the initial discussions or where appropriate in the response to discovery requests, parties should clearly identify the inaccessible sources reasonably related to the discovery or claims which are not being searched or preserved.
Guideline 4. A party should exercise caution when it decides for business reasons to move potentially discoverable information subject to a preservation duty from accessible to less accessible data stores.
Guideline 5. It is acceptable practice, in the absence of an applicable preservation duty, for entities to manage their information in a way that minimizes accumulations of inaccessible data, provided that adequate provisions are made to accommodate preservation imperatives.
Guideline 6. An entity should encourage appropriate cooperation among legal and other functions and business units within the organization to help ensure that preservation obligations are met and that resources are effectively utilized.
The bulk of this commentary is devoted to explaining the six guidelines and preservation decision process. This is a much needed work. All e-discovery teams are now struggling with the issue of how much and what ESI needs to be preserved upon notice of a dispute. These decisions are necessarily fraught with vagaries and danger. Anyone who works in this area knows that the preservation selection process is more of an art than a science. For this reason, judges should be slow to impose sanctions for good faith mistakes.
If parties follow the five-step flow chart and make a good faith effort, they should not be subject to Monday morning quarter-backing and sanctions if they guessed wrong. The ESI universe of most companies is so large and complicated that most of the decisions in this process require some educated guesses. For instance, it is often little more than an educated guess to try to determine what ESI might be relevant to a dispute when it first surfaces. This is especially true when a company does not know much about a dispute aside from what is stated in a poorly plead, vague, or boilerplate complaint.
About my only criticism of Sedona Preservation Commentary is the graphic this group created to illustrate the Decision Tree (shown below). I found their graphic too wordy and busy looking. That is why I went to the trouble to create my own. My graphic follows the same logic flow as the original, but with fewer words and a different layout. Still, this is a matter of personal taste and you may prefer their version. The Sedona Preservation Commentary provides a good explanation of this decision process, and so the chart is just a handy reminder. Here is the original graphic included in the Sedona commentary.
Aside from my minor aesthetics criticism, I think this group pretty much nailed the preservation decision process. It looks both accurate and complete to me. I would be curious to know what you think, so please answer the quick poll below.