Protecting the Fourteen Crown Jewels of the Sedona Conference in the Third Revision of its Principles

Richard Braman (1953-2014)

It is generally recognized that the crowning achievements of The Sedona Conference®, and its founder, Richard G. Braman (1953-2014), are the fourteen Sedona Principles and the Cooperation Proclamation. That makes the update to the Principles released March 31, 2017 so important. It is especially meaningful to the e-Discovery Team because we have always followed these basic principles. That is why I am obliging a request to quickly write a review of this new publication:

The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, THE SEDONA CONFERENCE (2017 Public Comment Version).

I was happy to focus on the latest revisions to the Principles, although I was a little apprehensive about the “book review.” What if I thought that they botched it? When you try to change an important text like this, you always risk criticism for unnecessary meddling, and for good reason. All too often “updates” can be like movie sequels, they can spoil an already well written treatise. I was afraid that might happen here.

The current Second Edition of the Principles is well known and respected, as is, and has often been cited. Will these citations lose meaning if changes to the Principles go too far, too fast? Will the Principles be diminished by changes and lose prestige? The writing team well recognized these dangers.

In preparing The Sedona Principles, Third Edition, part of the original charter for the drafting team was primum noc nocere, literally translated as “first, do no harm.” … This goal proved easier said than done.

The Sedona Principles, Third Edition at pg. 3.

On the other hand, will the changes be radical enough to keep up with rapidly changing technology? Will they be constrained from needed surgeries by fear of doing harm. Do certain Principles need to be revised, at least somewhat, to conform with the 2015 Rule amendments and other changes in the law? Should any Principle be retired altogether as unnecessary or outdated? How do you update and make all of the language consistent? How can you be accurate, yet also concise; after all, these are principles?

It can be a hard balance to strike. With all of these things in mind, I began reading the revisions with some trepidation.

Good news. The Sedona Conference has risen to the occasion. The writing and editing team, whom I’ll name later, have done an outstanding job. Congratulations are in order all around. This is very well written in both style and substance. It appears to me that a fair balance was struck on most of the issues behind the revisions made (and the revisions not made).

They kept Principle One, but updated the language. Principle Two on proportionality was also updated to conform with revised Rule 26(b)(1). So too was Principle Five on preservation, Principle Eight on accessibility, Principle Twelve on forms of production and Thirteen on costs. The Fourteenth Principle on sanctions was completely rewritten to conform with revised Rule 37(e). That was the right thing to do under the circumstances and I like how they included both remedial measures and sanctions.

The only thing unexpected to me is that the committee did not make any changes at all to what many believe is the most controversial of its Principles, Principle Six. That is the “responding parties best situated” principle. They only added to the Comments. Many think, myself included, that it needs to be tweaked further to exclude search and review methods. How can we use costs and proportionality to limit relevance and at the same time allow a producing party to use whatever expensive, ineffective method they want? More on that controversy later.

2017 Sedona Principles (edits-displayed version)

For those of you in a hurry, I have prepared the following “edits displayed” version of the new Principles. This shows with ~~x-out font~~ the old language that was stricken and with underline the new language that was added. The final language is in bold. (Any inadvertent errors in this restatement are purely my own, not Sedona’s.) This is not contained anywhere in the Sedona publication and I thought it might be a public service to provide it here. Anyway, I aways like to see revisions this way. I have done the same for the e-discovery Rules of Civil Procedure.

For experts already very familiar with the Sedona Principles it will be easy to follow the below edits displayed version and see what was done and guess why. Still, there is no need to speculate. The excellent introductory remarks explain the thought processes behind each revision. As you will see, a great many of the revisions were stylistic. Thanks goes to the new Editorial Style Team. Good idea to have a special sub-group for that. The Style Team‘s input is greatly appreciated. The result is a much more readable work.

The Sedona Principles, Third Edition

(edits displayed version)

Electronically stored information is potentially discoverable under Fed. R, Civ. P. 34 or its state equivalents. Organizations must properly preserve electronically stored information that can reasonably be anticipated to be relevant to litigation. generally subject to the same preservation and discovery requirements as other relevant information.
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 technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing electronically stored information, as well as the nature of the litigation 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.
As soon as practicable, parties should confer early in discovery and seek to reach agreement regarding the preservation and production of electronically stored information. when these matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities.
Discovery requests for electronically stored information should be as clear specific as possible; while responses and objections to discovery should disclose the scope and limits of the production.
The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may is expected to be relevant to claims or defenses in reasonably anticipated or pending or threatened 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.
Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.
The primary sources of electronically stored information for production should be active data and information. Resort to disaster recovery backup tapes and other sources of electronically stored information that are not reasonably accessible requires the requesting party to demonstrate need and relevance that outweigh the costs and burdens of retrieving and processing the electronically stored information from such sources, including the disruption of business and information management activities. 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.
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.
Parties A responding party should follow reasonable procedures to protect privileges and objections in connection with the production of electronically stored information 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.
A responding party may satisfy its good faith obligations to preserve and produce relevant electronically stored information by using electronic tools technology and processes, such as sampling, searching, or the use of selection criteria. to identify data reasonably likely to contain relevant information.
Absent party agreement or court order specifying the form or forms of production, The production of electronically stored information should be made in the form or forms in which the information it is ordinarily maintained or in a that is reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case given the nature of the electronically stored information and the proportional needs of the case.
Absent a specific objection, party agreement or court order, The reasonable costs of retrieving and reviewing preserving and producing relevant and proportionate electronically stored information ordinarily 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 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 may be shared by or shifted to the requesting party.
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. Sanctions, including spoliation ﬁndings, should be considered by the court only if it finds that there was a clear duty to preserve, a culpable failure to preserve and produce relevant electronically stored information, and a reasonable probability that the loss of the evidence has materially prejudiced the adverse party.

Nothing Is Perfect

Although this Third Edition is very good, it is not “perfect.” Nothing ever is. The writing team recognizes this and so, according to Sedona tradition, they consider this a draft, not a final version. They invite comments from anyone, so long as they are submitted on or before June 30, 2017. Send by email to comments@sedonaconference.org.

Only after the comments are studied will the writing committee go to the final draft. I hope this process is speedy and smooth. Unnecessary delays will be detrimental to the whole profession, especially e-discovery lawyers, judges, teachers and trainers.

Principle Six

Having said that about the need to quickly go to final, I do think the Writing Team should reconsider its decision not to tweak Principle Six. They should come up with some revision to address the changing technological landscape and case law, especially the decisions on predictive coding. In my view it is not enough to rely on the new comments added, even though I do appreciate and applaud Comment 6.e. Use and role of discovery counsel, consultants, and vendors.

All of the new comments to Six are good revisions, but they do not go far enough to address issues and misunderstandings seen with the wording of this Principle and a producing party’s refusal to use effective, inexpensive search and review technology. Principle Six was never intended to provide cover for inept lawyers. Yet that is exactly how it is sometimes being misused.

The experience-based comments of Craig Ball, Special Master, Consultant and Forensic Examiner, should have been more fully addressed. See: Sedona Principle Six: Overdue for an Overhaul (Ball in Your Court, October 2014) (“Sedona Principle 6 is overdue for an overhaul: It’s out of synch with reality, and always has been.“) Also see: Rohlf, Second Thoughts on Sedona Principle Six.

Here is Craig Ball’s core objection (but I suggest you read his whole article), and note that the language he criticizes has not changed:

The current Principle Six states, “Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.”

Sometimes responding parties are best situated. But, sometimes they are foxes guarding henhouses, and sometimes possess so little competence that their folly serves as fodder for sanctions.

The presumption of superior competence is belied by the reality of widespread confusion and incompetence. Yes, an organization may better know its own data for it’s in a superior position to know; but, it’s foolish to assume they possess a superior ken of their data with respect to its identification, preservation and transit into and through e-discovery. That’s a specialty.

Sometimes the requesting party better understands the relevant elements of the responding party’s information technology vis à vis e-discovery than the responding party. Truth be told, the procedures, methodologies and technologies appropriate for preserving and producing ESI are more similar than they are different. Is one company’s Exchange Server fundamentally different from another’s? Is your implementation of Salesforce.com radically different in terms of features and capabilities than mine? …

I am inclined to agree with some of Craig’s comments here, even though, unlike Craig, I strongly agree with the overall intent of the principle, especially as it concerns preservation and collection. I do not want opposing counsel trying to tell me what to do anymore than the next guy. But, this should not give an attorney carte blanche to do anything under a sometimes false presumption of competence, much less superior competence. We are undercutting Rules 1 and 26(g) in doing so.

I do not think that Principle Six should apply to choice of document review method, especially when the cost of that review is an important factor in determining scope of relevance. What really matters is not ownership of ESI and IT systems, but competence in ESI search and review. It is a matter of knowing how to use the best tools to search for and find the electronic evidence needed to try a case. What does that have to do with who owns the data or where it once lived?

Just suggesting a party hire experts, which Comment 6.e. does, is not adequate to address this problem. It does not go far enough. I for one do not call for the elimination of Principle Six, as Craig Ball seems to do, but I think Principle Six needs to be revised and clarified. Principle Six needs to be taken out of the equation in determining reasonable, proportionate efforts of search. Right now it is the six hundred pound gorilla in the room that stifles fair debate on the merits of reasonable efforts.

Although we are not there yet, I predict that, in spite of Principle Six as now worded, a day will come when a court will order a party to use predictive coding, or appoint a third-party to do so for them, even though the producing party does not want to. They will do that to prevent manifest injustice. As Judge Peck held in Hyles v. New York City, No. 10 Civ. 3119 (AT)(AJP), 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016):

There may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR. We are not there yet. Thus, despite what the Court might want a responding party to do, Sedona Principle 6 controls. Hyles’ application to force the City to use TAR is DENIED.

Principle Six is now providing cover for the technologically inept. It allows a lawyer to choose to use archaic methods of document review, all under the name of a supposed inherent special knowledge of the responding party. That makes no sense. The use of predictive coding, or not, has little or nothing to do with a party’s knowledge of unique, proprietary IT systems. It has to do with a lawyer’s search skills and competence. It has to do with what is reasonable and proportionate under the circumstances.

How can we in good conscience allow costs to limit the search for truth under 26(b)(1) and, at the same time, allow a responding party to use whatever expensive, ineffective method they want? This is like the billable hour itself where inefficiency is rewarded. Principle Six needs to be updated to address this unjust loophole.

Under the right facts, and with good supporting expert testimony, a judge may soon decide that predictive coding is the only way to avoid an injustice, no matter what Principle Six says about “responding parties knowing best.” That is going to hurt the Sedona brand.

For example, what if the producing party’s discovery plan for review of One Million emails for relevance was to hire a team of one-hundred contract lawyers, located and licensed in the Philippines, and have them “speed-read” all One Million of them. To make it worse, what if the plan was for them to follow a two page definition of relevance (the terms of which they refuse to disclose, claiming work-product)? Might a court in these circumstances compel the producing party to retain an expert in predictive coding to search the same One Million emails? What if the cost of the expert supervised method was projected to be substantially less than the outsourced manual review plan? What if the projected TAR method cost allowed for proportional review of all twenty custodians the requesting party wanted, but the archaic, linear review method only allowed for proportionate review of ten?

The day will come when a scenario like this is presented to a court. Maybe the judge will hear testimony on whether the producing party and legal team are in fact best situated to evaluate the document search method. Maybe that will be unnecessary. Either way the Sedona Principle Six presumption may be proven foolish, at least as to document review. The Judge will be forced by Rule One to order the responding party to use the right technology. He or she will do that in spite of the current language of Principle Six. Maybe it will be Judge Peck again, maybe it will be some other judge less friendly to the Sedona Principles.

There is still a chance to revise Principle Six so that it will not provide comfort for Luddites, or worse, cover for an unethical litigant trying to hide the ball by use of dinosaur methods of search. Please do not be so naive as to believe this is not happening. There are strong economic incentives in some firms to play games and feed a profitable in-house army of contract lawyers. What is the motive to use best practices when the profit is in the worst.

I do not want to be accused of being a nay sayer who just criticizes and does not offer any positive solutions. So here are three possible alternative revisions. The first involves just a minor change to existing language:

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

I am not sure if this minor tweak will be affective or not. Probably not, but it should be an easy-sell to those over-concerned about primum noc nocere. Appropriate comments should go along with that change. Another fairly easy way to address the issue is to leave the language as is, but add a sentence:

Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information. Procedures, methodologies and technologies selected must be reasonably effective and cost-efficient.

I like that revision better. Another possible, more drastic solution is a re-write where the “responding parties” language is eliminated altogether:

~~Responding parties are best situated~~ Parties should use best practices to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information. Procedures, methodologies and technologies selected should be reasonably effective and cost-efficient.

Please Sedona, consider some kind of revision like this to the otherwise near perfect Third Edition of the Sedona Principles.

Download and Read the Third Edition

I encourage everyone to go to the Sedona Conference website, right now, and download the new Principles. Never just rely on what some commentator (even me) says about a document as important as this. Study it closely and come to your own conclusions. It also makes a great reference text with a reliable collection of useful citations.

The Attorneys and Judge Behind this Great Work

Thanks to the following Writing Team at Sedona. Their combined Sedona vortexes attained new and creative alignments of the highest quality. Good work.

Credit also has to go to Richard Braman and Ken Withers. Ken’s contributions were hands-on, I am sure.

The importance of the Team Leader, William P. Butterfield (1953–2016), cannot be overstated. Bill was a great influence on the Sedona Conference from the beginning. He helped Richard steer a balanced course between competing interests. The loss of both Richard and Bill since the publication of the last edition has been severely felt by everyone in the larger Sedona family. That is why it was so important for the Writing Team to get this project right. I am glad that they did, but not at all surprised. The Drafting Team includes some of the country’s top experts in e-discovery. Still, I cannot help but wonder what Bill’s position was on Principle Six?