Introduction by Ralph Losey (without AI assistance)
Regular readers of my blog know that I have included the Fourteen Sedona Principles at the bottom of the right column of my blog for over fourteen years. Although I sometimes quibble with the language of Principle Six, I am a strong believer in these principles and consider them authoritative. The latest Third Edition of the Principles is on the blog now. I keep them there as a handy reference and, although no longer a member, continue to hold The Sedona Conference® in high esteem. See my recent blog, Homage to Richard Braman and the Sedona Conference.
I have often wondered if the reason so many lawyers do not follow the Sedona Principles is because they do not understand them. They are written at a law school law review or higher reader level. They are written by committees. The Sedona commentaries are written at an even higher and complex level than most post-graduate work.
Let’s face it, many lawyers have not been forced to read legal texts since in law school, much less law review articles or other challenging legal commentaries. Most lawyers, if they read at all, read newspapers, magazines, social media and the like. It is well known that they are all written at a High School Eleventh Grade level. I suspect many judges keep this in mind when writing their opinions. Due to this constant exposure to simplified Eleventh Grade of High School reading level, this is what most people in the U.S. get used to reading, including lawyers. I do not mean to be insulting, it is just the way it is. Although I am an avid reader, I often have the same problem when entering for the first time an arcane area of study that is new to me.
For ease of comparison I put the original and Eleventh Grade versions of the fourteen Sedona Principles side by side below. Of course, I do not claim any copyright to them. And should the current leaders of The Sedona Conference® somehow take umbrage with this experiment (unlikely), I would with some sadness take this down. Better yet, I’d give them all revenue from this blog article (none) (there never has been ads or revenue from this blog).
I conclude this blog with an even more interesting ChatGPT experiment. I ask the generative Ai to rewrite the Sedona Principles at a second grade level. Again, I don’t mean to suggest lawyers need things dumbed down that much, but I have found that ChatGPT is especially good at such rewriting. You will see several examples of this on my blog. This 7 to 8 year old reading level (which my seven year old granddaughter has long surpassed) distills things to their essence. It often uses clever wording and child-like images.
This second grader rewrite of the Sedona Principles once again knocked my socks off. Incredible. Remember I did not change a thing to either of these ChatGPT rewrites. Even the introduction to the principles for second graders was the Ai’s idea. I only take credit for the generative engineering. I love it and hope you will too. I especially hope that my friends at The Sedona Conference® like it. We all have the same goal of education.
Getting back to the 11th grade reading level, the first thing you may notice is the 11th grade rewrite is a lot shorter. ChatGPT is noted for being wordy, verbose even, yet it is still far more concise then the Sedona original. Hmm. Perhaps the shortened, easier to read version changes the meaning somehow, but I don’t think so. Seems to me like the Ai did a pretty good job. In fact, I prefer the way it rewrote Principle Six. That is the principle whose wording I criticized and urged its revision when the third edition was out for public comment. (No change was made.) Protecting the Fourteen Crown Jewels of the Sedona Conference in the Third Revision of its Principles (April 2, 2017). These Ai rewrites may not be popular among some members of The Sedona Conference®, but personally, I think some of the edits are long overdue. Sometimes, less is more. Look out Sedona, the Ai editing robots are coming!
In my view the Chat GPT’s rewrites here do not distort anything. Of course, some Sedona experts might disagree with my assessment. (Hey, we are lawyers, excessive argumentation is an occupational hazard.) I will always defer to the great Ken Withers of the Sedona Conference, should he say so. Ken taught me so much over the years. He is one of the great authorities and legal teachers in the country with a very impressive vocabulary. His linguistic abilities might even be better than two of my other linguistically gifted friends from Sedona days, Jason R. Baron and Judge John Facciola. They also have astounding vocabularies and constantly make learned, arcane (to me at least) references. Maybe they will comment.
Fourteen Sedona Principals Rewritten by Chat GPT for an Eleventh Grade Reading Level
ELEVENTH GRADE LEVEL
1. Electronically stored information (ESI) is subject to the same preservation and discovery requirements as other relevant information.
2. When it comes to ESI, courts and parties should use the proportionality standard set by Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents. This means considering the importance of the issues, the amount of money involved, each party’s access to information, their resources, the importance of the discovery to the case, and whether the cost of the discovery outweighs its benefit.
3. Parties should try to reach an agreement on preserving and producing ESI as soon as possible.
4. Requests for ESI should be specific, and responses and objections should make it clear what will be produced.
5, Parties must make reasonable and good faith efforts to keep ESI that could be relevant to a claim or defense. However, it’s not necessary to take every possible step or use disproportionate means to preserve every piece of ESI.
6. Responding parties are in the best position to decide how to preserve and produce their own ESI.
7. If a responding party’s efforts to preserve and produce ESI are not enough, it’s up to the requesting party to prove that.
8. Parties should start by looking for ESI in the most accessible places. If that’s not possible, they can move to less accessible sources, but only if it’s proportional to the needs of the case.
9. Unless there’s a good reason, a responding party shouldn’t have to preserve, review, or produce deleted, shadowed, fragmented, or residual ESI.
10. Parties must protect ESI that’s subject to privileges, work product protections, privacy obligations, or other legally enforceable restrictions.
11. A responding party can meet their obligation to preserve and produce relevant ESI by using technology like data sampling, searching, or selection criteria.
12. ESI should be produced in the form it’s normally kept, or a reasonably usable form based on the nature of the information and the needs of the case.
13. Unless there’s a good reason, the responding party should bear the cost of preserving and producing ESI.
14. If a party breaches their duty to preserve ESI, the court can order remedial measures to fix any harm caused. Sanctions can be imposed if a party deliberately tries to keep relevant ESI from being used.
ORIGINAL SEDONA CONFERENCE LEVEL
1. Electronically stored information is generally subject to the same preservation and discovery requirements as other relevant information.
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)(2)(C) and its state equivalents, which require consideration of 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.
3. As soon as practicable, parties should confer and seek to reach agreement regarding the preservation and production of electronically stored information.
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.
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.
6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
7. 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.
8. The primary source 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.
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.
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.
11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using technology and processes, such as data sampling, searching, or the use of selection criteria.
12. The production of electronically stored information should be made in the form or forms in which it is ordinarily maintained or in a that is reasonably usable given the nature of the electronically stored information and the proportional needs of the case.
13. The costs of preserving and producing relevant and proportionate electronically stored information ordinarily should be borne by the responding party.
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.
Fourteen Sedona Principles Redrafted by Chat GPT at a Second Grade Level
Okay, so let’s talk about finding information on computers and phones. Sometimes, when people are in a disagreement and need to go to court to figure it out, they might need to look at messages or pictures that are saved on electronic devices.
There are some rules that everyone has to follow when looking for this kind of information.
1. Electronic information is just as important as other kinds of information, so it has to be taken care of and looked at carefully.
2. When someone is trying to find information, they have to be fair and not ask for too much or things that aren’t really needed. They also have to think about the cost and whether it’s worth it to look for the information.
3. Everyone has to work together and talk about how they’re going to look for and share the information.
4. When someone asks for information, they have to be very clear about what they want, and the other person has to say exactly what they will give them.
5. People have to try to keep important information safe, but they don’t have to keep everything.
6. The person who has the information is the best person to decide how to keep it safe and share it.
7. If someone thinks that the other person didn’t keep the information safe, they have to prove it.
8. When someone is looking for information, they should start by looking in the easiest places to find it.
9. People don’t have to look for information that has been deleted or is hard to find, unless there is a really good reason.
10. If information is private, people have to make sure it stays private.
11. There are special tools that can help find information, like searching through it or looking at a sample of it.
12. When information is shared, it should be in a way that makes sense and is easy to understand.
13. The person who has the information has to pay to keep it safe and share it, unless there is a good reason not to.
14. If someone breaks the rules and doesn’t take care of the information or tries to hide it on purpose, the court can make them fix the problem and even punish them.
This is marvelous! Well done! The second grade version misses key points, but overall, it’s superior in its naïf ability to convey the soul of the bedrock Red Rock principles.
Ralph, thanks as always for the mention. Let me add my 2 cents on Principle 6: I have never understood it to act as a complete anti-transparency shield, because it sits along side Principle 3, which embodies the spirit of Sedona’s Cooperation Proclamation in urging parties to meaningfully meet and confer and reach agreement on various aspects of preservation and production. I really like Chat GPT3’s version of Principle 3:
“Everyone has to work together and talk about how they’re going to look for and share the information.”
Indeed, a close reading of the Third Edition of the Sedona Principles provides more than adequate support for greater transparency being afforded to requesting parties with respect to the methodologies and technologies that responding parties choose to employ. See, e.g., Comment 3.b., 19 SEDONA CONF. J. at 78 n.47 (2019) (citing to Romero v. Allstate, where relying on The Case for Cooperation the Court ordered the parties to confer and come to agreement on future search terms, custodians, date ranges, and other essentials to a search methodology.). There are dozens of cases that affirm this holding.
Indeed, even within the Commentary to Principle 6 itself, it is acknowledged that:
“In addition, there may be circumstances where a requesting party may legitimately claim to have relevant, equal, or superior knowledge of certain aspects of the responding party’s business operations, information systems, or potential procedures for preserving and producing relevant ESI within the scope of discovery from the responding party’s systems. In those situations, if the requesting party is engaging in meaningful cooperation by providing specific information on such issues, the responding party should consider the information the requesting party provides in evaluating the preservation steps and production that is proportional and relevant.”
See Comment 6.b., 19 SEDONA CONF. J. at 125-126.
Whether one is reading at a second grade, eleventh grade, or Sedona level, I believe that Principle 6, in context, should always assume some level of reasonable cooperation and transparency. Indeed, the homage to Bill Butterfield in the introduction to the Third Edition is testament to such a reading, where transparency is expressly noted.
Finally, when I asked ChatGPT3 just now, “What does the concept of cooperation mean in e-discovery,” it provides what I think is an elegant response:
“In the context of e-discovery, ‘cooperation’ refers to the willingness of parties to work together to identify and produce relevant electronic documents and information in a timely and cost-effective manner. It involves a collaborative and transparent approach to the e-discovery process, with the goal of reducing the costs and delays associated with traditional adversarial discovery.
Cooperation in e-discovery includes sharing information about the scope and timing of document requests, negotiating search terms and methodologies, and agreeing on the format and production of electronic documents. It also involves engaging in open and honest communication with opposing parties, and being willing to address and resolve disputes in a timely and efficient manner.
The principle of cooperation has been widely embraced in e-discovery, and many courts and legal organizations have developed guidelines and best practices for promoting cooperation between parties. By working together in a spirit of cooperation, parties can streamline the e-discovery process, reduce costs and delays, and ultimately achieve a more efficient and effective resolution of disputes.”
Well said, I think.
By the way, if one types into ChatGPT3 “who are leaders in e-discovery,” Ralph is prominently mentioned. It seems that Ralph and ChatGPT3 have the beginning of a beautiful friendship…..
Thanks. Eloquent as always. And that ChatGPT search to emphasize your point. Brilliant!
[…] See Losey’s earlier blog for the average adult and kid’s version of the fourteen Sedona Principals. Also see his recent blog, Homage to Richard Braman and the Sedona Conference. Go to www.thesedonaconference.org to download a free copy of the original Sedona Principles, 3rd Edition. This Sedona Poem concludes, for now, Ralph’s Sedona series. […]
[…] See Losey’s earlier blog for the average adult and kid’s version of the fourteen Sedona Principels. Also see his recent blog, Homage to Richard Braman and the Sedona Conference. Go to www.thesedonaconference.org to download a free copy of the original Sedona Principles, 3rd Edition. This Sedona Poem concludes, for now, Ralph’s Sedona series. […]