39863 sed

The Sedona Conference Journal

Volume 19 | Number 1 2018

The Sedona Principles, Third Edition:

Best Practices, Recommendations & Principles for

Addressing Electronic Document Production

The Sedona Conference

Recommended Citation:

The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles

for Addressing Electronic Document Production, 19 Sedona Conf. J. 1 (2018).

For this and additional publications see: https://thesedonaconference.org/publications

ȱȱȱ

ȱǻȱŗśřŖȬŚşŞŗǼȱȱȱȱȱȱȱ

Ȭȱǰȱȱȱȱȱȱ¢Ȃȱȱ

ȱȱȱěǯȱȱȱȱȱȱȱ¢ȱȱȱ

ȱȱȱȱȱȱ¢ȱȱȱȱȱ

ǻǞşśǲȱǞŚśȱȱȱȱȱȱȱǼǯȱȱ

ȱȱȱȱǻȓǯǼȱȱȱǻŗȬŜŖŘȬŘśŞȬŚşŗŖǼȱȱȱȱȱ

ȱǯȱȱȱȱȱȱȱȱȱȱ

ǰȱȱǰȱȱǱȱǯǯǯȱ

ȱǻ¢ȱǼȱȱȱȱȱȱȱȱ

ȱȱȱȱȱȱǱȱȱ

ȱȱǰ

řŖŗȱȱ¢ȱȱǰȱȱȬŘşŝǰȱ¡ǰȱȱŞśŖŗŘȱȱȱ

ȓǯȱȱȱŗȬŜŖŘȬŘśŞȬŚşŗŖǯ

ȱȱȱ

ȱȱ¢ȱȱȱȱ

ǯǯȱȱȓǯǯ

ȱȱȱȱȱȱȃŗşȱȱǯȱǯȱȏȏȏȏȏȱǻŘŖŗŞǼǯȄ

¢ȱŘŖŗŞǰȱȱȱǯȱ

ȱȱǯ

THE SEDONA PRINCIPLES,THIRD EDITION:

EST PRACTICES,RECOMMENDATIONS &PRINCIPLES FOR

DDRESSING ELECTRONIC DOCUMENT PRODUCTION

A Project of The Sedona Conference Working Group on

Electronic Document Retention and Production (WG1)

Author:

The Sedona Conference

Drafting Team:

Anthony J. Diana Eric P. Mandel

†

Amor A. Esteban Timothy M. Opsitnick

Joseph P. Guglielmo

†

Charles R. Ragan

Ted S. Hiser

Dena C. Sharp

Dean Kuckelman

†^

Martin T. Tully

Judicial Participant:

The Honorable Andrew J. Peck

Team Leader and WG1 Steering Committee Liaison:

William P. Butterfield

†

Copy Editor:

Susan M. McClain

†

WG1 Steering Committee

Editorial Style Committee

2THE SEDONA CONFERENCE JOURNAL [Vol. 19

The opinions expressed in this publication, unless otherwise

attributed, represent consensus views of The Sedona Confer-

ence Working Group 1. They do not necessarily represent the

views of any of the individual participants or their employers,

clients, or any other organizations to which any of the partici-

pants belongs, nor do they necessarily represent official posi-

tions of The Sedona Conference.

We thank all of our Working Group Series and Annual Spon-

sors, whose support is essential to our ability to develop Work-

ing Group Series publications. For a listing of our sponsors, just

click on the “Sponsors” navigation bar on the homepage of our

website.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 3

This publication may be cited as follows:

The Sedona Principles, Third Edition: Best Practices, Recom-

mendations & Principles for Addressing Electronic Docu-

ment Production, 19 S

EDONA CONF. J. 1 (2018).

The recommended short citation form is simply:

The Sedona Principles, Third Edition, 19 SEDONA CONF. J. 1

(2018).

ȱ¢ȱȱȱȱȱęȱǰȱǰȱȱCom-

ments. For example:

The Sedona Principles, Third Edition: Best Practices, Recom-

mendations & Principles for Addressing Electronic Docu-

ment Production, 19 SEDONA CONF. J. 1, 53–54 (2018).

The Sedona Principles, Third Edition, 19 SEDONA CONF. J. 1,

Principle 11, 164–168 (2018).

The Sedona Principles, Third Edition, 19 SEDONA CONF. J. 1,

Cmt. 5.e., 108–109 (2018).

4THE SEDONA CONFERENCE JOURNAL [Vol. 19

IN MEMORIAM

The Third Edition of The Sedona Principles would not be a re-

ality without the vision and efforts of two great lawyers and hu-

man beings, who are no longer with us—Richard Braman and

Bill Butterfield.

Richard G. Braman (1953–2014) was the founder and first

Executive Director of The Sedona Conference. Much has been

written and said in the nearly three years since Richard left us,

but it is undeniable that Richard’s vision turned The Sedona

Conference from an idea on paper into a world-renowned think

tank that can move the law forward in reasoned and just ways.

Richard’s passion for meaningful human interaction—and dia-

logue not debate—guided his inspirational journey at The Se-

dona Conference, as well as his early careers as a practicing law-

yer and even jazz club owner. He challenged convention in all

the right ways, while building and sustaining personal and pro-

fessional relationships. His positive impact on the profession, as

well as on his family and friends, was profound.

What may be relatively unknown, however, is how Rich-

ard’s vision, entrepreneurial spirit, and drive provided all the

right ingredients to allow the concept of The Sedona Principles to

grow and blossom in the first place. In the Spring of 2002, Rich-

ard was keen to take The Sedona Conference to the “next level”

beyond the highly successful educational “regular season” ex-

periences provided in the areas of Complex Litigation, Anti-

trust, and Intellectual Property. When presented with the idea

to invite a group of people to Phoenix in the Fall of 2002 with

the ambitious goal of developing principles that could help

guide litigants and courts in the nascent arena of “electronic dis-

covery,” Richard did not hesitate. He instantly recognized the

area as one where the magic of dialogue among interested pro-

fessionals, many of whom he had never met, could well lead to

the development of something worthwhile that would move the

2018] THE SEDONA PRINCIPLES,THIRD EDITION 5

law forward in a reasoned and just way. He dove in headfirst to

build the structure of the Working Group Series to help support

the effort, while also seeing the opportunity to use Working

Groups across many areas in the future as a way to realize his

dream of that “next level” for The Sedona Conference.

And then Richard did what many people find impossible to

do: he trusted the assembled group to follow the formula of

open dialogue to reach that reasoned and fair output, which was

first embodied in 2003 in The Sedona Principles. Richard certainly

challenged the group, and had his eye on the meetings and work

product to ensure fealty to the core principles of The Sedona

Conference. But he did not try to write the document himself,

and he did not interfere with the editorial process or dictate out-

comes. Instead, he relentlessly fanned the flames of active, in-

tense, and meaningful dialogue as the document took shape. Af-

ter the first public comment version of the Principles was

distributed free of charge for the world to scrutinize, Richard

did not rest, but he immediately spurred and led efforts to ac-

tively recruit new members from diverse backgrounds and per-

spectives to join the dialogue to refine and reshape the Princi-

ples.

Richard’s unique combination of passion, vision, energy, in-

tellect, humor, and agility were all critical to providing the safe

space for the development of The Sedona Principles from its in-

ception fifteen years ago through the publication of this Third

Edition, and the publication of many more works by The Sedona

Conference, including the marquee The Cooperation Proclamation

which was a signature achievement for Richard.

William P. Butterfield (“Bill”) (1953–2016) was renowned as

a successful complex business litigation and class action law-

yer. Over nearly two decades, he also achieved top recognition

as a leading electronic discovery specialist—as a practitioner, a

teacher, a mentor, a speaker, an author, and an expert.

6THE SEDONA CONFERENCE JOURNAL [Vol. 19

Among his most coveted roles, Bill served as an ambassador

of Working Group 1 of The Sedona Conference for many years,

first as an active member of the Working Group, next as an ap-

pointed member of the Steering Committee, and ultimately as

Vice-chair and then Chair of the Steering Committee.

Bill was an early architect of The Cooperation Proclamation,

first published in 2008. Working side-by-side with Richard

Braman, Bill and others crafted a white paper (The Case for Coop-

eration) that was both provocative and practical, and launched a

“national drive to promote open and forthright information

sharing, dialogue (internal and external), training, and the de-

velopment of practical tools to facilitate cooperative, collabora-

tive, transparent discovery.” As of this writing, the Proclamation

has been endorsed by more than 215 judges nationwide, and has

served as a guidepost for lawyers and judges as they navigate

discovery of electronically stored information from ever-evolv-

ing technologies. The Proclamation also paved the way for the

acknowledgement of the importance of cooperation, as reflected

in the Advisory Committee Notes to the 2015 amendments to

the Federal Rules of Civil Procedure.

The fact that Bill was an early proponent of cooperation was

characteristic of his exemplary life. A man of dignity, honor,

kindness, humility, and grace, Bill worked tirelessly to achieve

fairness and justice in the courtroom, and in the development of

the law.

Bill’s recognition as a leader in the electronic discovery field

was unique among plaintiffs’ lawyers and required tenacity,

strategic thinking, exorbitant amounts of time, and very, very

thick skin. And thick skin he had—for the Steering Committee

struggled for years to update The Sedona Principles, but it was

under his leadership that the goal was achieved and this publi-

cation is now a reality.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 7

Bill’s success was the result of something extraordinary

among a large crowd of intellects and geeks—Bill was a man of

pure grace. He let others speak first, he listened, and he consid-

ered all that he heard before he mapped the direction to be

taken, and even then he offered the direction as a proposal to be

considered. Bill brought to his endeavors not only his superior

intellect, but also logic and his commitment to fairness and jus-

tice.

Bill’s life and his tenure as Chair both completed their beau-

tiful circles in December 2016.

With the publication of The Sedona Principles, Third Edition,

may Bill’s and Richard’s voices be heard, encouraging all law-

yers to be not only smart and strategic, but also thoughtful, con-

siderate, and fair.

Jonathan M. Redgrave Ariana J. Tadler

8THE SEDONA CONFERENCE JOURNAL [Vol. 19

PREFACE

Welcome to the final version of The Sedona Principles, Third

Edition: Best Practices, Recommendations & Principles for Address-

ing Electronic Document Production, a project of The Sedona Con-

ference Working Group on Electronic Document Retention and

Production (WG1). The Sedona Conference is a 501(c)(3) re-

search and educational institute that exists to allow leading ju-

rists, lawyers, experts, academics, and others at the cutting edge

of issues in the areas of antitrust law, complex litigation, and

intellectual property rights, to come together in conferences and

mini-think tanks called Working Groups to engage in true dia-

logue—not debate—in an effort to move the law forward in a

reasoned and just way.

The Sedona Principles was the first, and is still perhaps the

best-known, publication in the Sedona Conference Working

Group Series. As detailed in the Foreword, the genesis of The

Sedona Principles goes back to 2002. While still in draft form, the

First Edition influenced the development of the law and was

cited in the landmark case of Zubulake v. UBS Warburg, 229

F.R.D. 422, 440 (S.D.N.Y. 2004). Throughout its 15-year evolu-

tion, The Sedona Principles has been recognized as a foundational

guide for attorneys and judges confronting the novel challenges

of eDiscovery.

But just as the Second Edition was necessitated by advances

in the law and amendments to the Federal Rules of Civil Proce-

dure in December 2006, this Third Edition has been necessitated

by an even greater explosion in the volume and diversity of

forms of electronically stored information, the constant evolu-

tion of technology applied to eDiscovery, and by further amend-

ments to the Federal Rules of Civil Procedure that went into ef-

fect in December 2015. Perhaps an even more significant

motivation for a Third Edition is that we have an additional ten

years of experience with eDiscovery, which has refined our

2018] THE SEDONA PRINCIPLES,THIRD EDITION 9

analysis and sharpened some differences in outlook. This was

reflected in the amount of time it took to reach consensus on a

few particularly thorny issues. And by “consensus,” we do not

mean unanimity, but a series of compromises that the drafting

team and WG1 members were willing to live with as general

statements of principle, even if they may advocate for a different

position in an individual case.

In a departure from past practice, we have acknowledged all

the members of the drafting team together on the title page, as

no distinction in rank between editors and contributors is ap-

propriate for this work. Over the course of many years, every

member of the team contributed what they could, when they

could. We are particularly grateful to four members of the draft-

ing team who volunteered to serve as a “Style Committee,”

smoothing out the rough edges of a document to which many

people contributed: Ted Hiser, Dean Kuckelman, Judge Andrew

Peck, and Charles Ragan. We are also grateful to three volun-

teers who stepped forward to perform a task which may not be

glamorous, but is absolutely necessary for an authoritative ref-

erence work such as The Sedona Principles, Third Edition—check-

ing rule, statute, and case citations for accuracy and conform-

ance with accepted legal citation form. We thank Drew B.

Howk, K. Alex Khoury, and Andrew H. Walcoff for their inval-

uable assistance with this task.

The current and ex officio members of the WG1 Steering Com-

mittee are listed at the end of the Foreword, but several former

members of the WG1 Steering Committee served during the

long drafting period for this publication, and they contributed

to the earliest drafts and reviews: Sherry Harris, John Rosenthal,

David Shonka, and Edward Wolfe.

Finally, in addition to the many members of the community

that provided comments during the public comment period, we

recognize the several hundred members of WG1 who took the

10 THE SEDONA CONFERENCE JOURNAL [Vol. 19

time to read innumerable drafts, sit through many meetings in

person and online, contribute comments, point out inconsisten-

cies, and suggest solutions to problems. Their membership

makes The Sedona Conference Working Group Series publica-

tions possible and lends them the authority that only diversity

and inclusiveness can provide. WG1 is only one of several Se-

dona Conference Working Groups engaged in producing pri-

mers, principles, guidelines, and best practices to move the law

forward in the areas of antitrust, patent, data security, and cross-

border litigation. If you are not already a member of The Sedona

Conference Working Group Series, we urge you to consider

joining and becoming part of this unique effort. More infor-

mation on the Working Groups and membership may be found

at https://thesedonaconference.org/join.

Craig Weinlein

Executive Director

The Sedona Conference

October 2017

2018] THE SEDONA PRINCIPLES,THIRD EDITION 11

FOREWORD

A History of The Sedona Principles

As described in the Second Edition, The Sedona Conference

Working Group on Electronic Document Retention and Produc-

tion (WG1), a group of attorneys and others with experience in

handling electronic information in litigation, met in October

2002 for the first time to address the production of electronic in-

formation in discovery. The group was concerned about

whether rules and concepts developed largely for paper discov-

ery would be adequate to address issues of electronic discovery,

and whether guidance on the issues could be expected to

emerge quickly from individual court decisions. After vigorous

dialogue, a set of core principles and best practice recommenda-

tions emerged for addressing the production of electronic infor-

mation in litigation. These principles became known as The Se-

dona Principles.

The initial draft was published for comment in March 2003,

widely disseminated through various channels to the legal com-

munity by members of WG1, and cited by the federal courts as

early as May 2003. WG1 met again in October 2003 to discuss

and evaluate comments and possible revisions, and to seek fur-

ther input from WG1 members.

In January 2004, the First Edition of The Sedona Principles was

published in final form. It reflected the considered comments to

the initial draft, and resulting changes that were believed to en-

hance the document as a guide to courts, parties, and counsel.

An “Annotated Version” of the First Edition was published in

June 2004, showing how court decisions dovetailed with or var-

ied from The Sedona Principles. A 2005 Annotated Version, incor-

porating cases decided in 2004 and 2005, was published in July

2005.

During the same period (2004–2005), the Advisory Commit-

tee on the Federal Rules of Civil Procedure met, evaluated, and

12 THE SEDONA CONFERENCE JOURNAL [Vol. 19

published for public comment a set of draft amendments to the

Federal Rules, for the first time specifically addressing discov-

ery of electronic information. The Committee held three public

hearings, heard oral testimony from 74 witnesses, and received

180 written submissions. In April 2006, the U.S. Supreme Court,

acting through the Rules Enabling Act, adopted the final pro-

posals, which went into effect on December 1, 2006.

WG1 found itself at the center of the approaching 2006

amendments, and in the Fall of 2006, WG1 met and agreed to

revise Principles 12 and 14, extensively redraft nearly all Com-

ments, and add several new Comments, predominantly to re-

flect the changes to the Federal Rules of Civil Procedure.

Dur-

ing Winter and Spring 2007, the WG1 Steering Committee made

additional changes to Principles 8 and 13, as well as further edits

to the Comments.

In June 2007, the Second Edition of The Se-

dona Principles was published. An Annotated Version of the Sec-

ond Edition followed four months later.

Over the subsequent years, as technologies evolved and is-

sues surrounding discovery of electronic information became

more complex and costly, many in WG1 expressed interest in

further updates to the Principles. Accordingly, in 2010, a drafting

team was formed to reexamine the Principles in light of experi-

ences with the 2006 amendments as well as the newer technolo-

gies, and to suggest updates to Principles and the Comments. A

draft was presented at the Spring 2011 WG1 meeting, but the

effort stalled due to a lack of consensus. In 2012 the WG1 Steer-

ing Committee formed an ad hoc subcommittee to reexamine

1. Thomas Y. Allman, The Sedona Principles after the Federal Amendments:

The Second Edition (2007), THE SEDONA CONFERENCE (2007), https://thesedo-

naconference.org/publication/The%20Sedona%20Principles.

2. Id.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 13

the Principles, and in 2013 the current drafting team was re-

cruited.

In the ensuing three-plus years, drafts of the Principles and

Commentaries were presented for dialogue at two meetings of

WG1 in 2014. In response to significant feedback from the mem-

bers, the drafting team met in person in Phoenix in December

2014, with Judge Peck participating telephonically, and after

two days came out with a consensus draft of the Principles for a

Third Edition. This was presented to the WG1 Steering Commit-

tee in January 2015, where feedback was provided to the draft-

ing team, which then made additional edits during Winter 2015.

A full draft of the Principles and Commentaries for a Third Edi-

tion was presented to the WG1 membership in multiple sessions

at the 2015 Midyear Meeting in Texas, but nothing close to con-

sensus emerged and it was apparent that additional changes to

several key Principles, as well as related Comments, were in or-

der. Following further work by the drafting team, three online

meetings open to the entire WG1 membership were held over

the Summer of 2015, during which the membership had the op-

portunity to provide feedback on the third draft of the Third

Edition. In addition, numerous written comments were received

from the membership. As a result, the issues in contention were

narrowed, and the drafting team again revised several Com-

ments. These edits were carefully considered by the WG1 Steer-

ing Committee in September 2015, particularly in regards to the

Comments to Principle 6. Again, revisions were made by the

drafting team in short order and presented to the WG1 member-

ship at the 2015 Annual Meeting, where consensus seemed to be

reached on all but a few contentious sections of Comments. Af-

ter another round of revisions by the drafting team, a new draft

was presented at the 2016 Midyear meeting, and posted on the

WG1 website for all members to consider and provide input, as

appropriate. Consensus was reached on nearly all issues, the

drafting team produced yet another draft, and the editorial Style

14 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Committee (comprised of three drafting team members and the

judicial participant) worked long hours to harmonize the voice

and style across all 14 Principles and throughout the draft. The

resulting product was considered by the WG1 Steering Commit-

tee in September 2016. At that time, consensus was established,

except with respect to certain language in Comment 6.b. as to

which strongly-held views were presented by members who

predominantly represented opposing sides in large-scale, asym-

metrical litigation.

Thereafter, the WG1 Steering Committee made several at-

tempts to resolve the remaining issue on the competing posi-

tions regarding the text of Comment 6.b. Sadly, in December

2016, William Butterfield, our dear friend and colleague, who

was serving not only as the Chair of the WG1 Steering Commit-

tee, but also as the Steering Committee Liaison and Team

Leader of the Principles project, passed away after a short illness.

Following the holidays and a period of mourning, the WG1

Steering Committee met in person in January 2017, and reached

consensus on the final language for Comment 6.b. that is re-

flected in this publication.

Public Comment

A Public Comment Version of The Sedona Principles, Third

Edition was released to the community on March 31, 2017. All

comments received prior to the June 30, 2017, deadline were

given careful consideration by the drafting team in July and Au-

gust 2017, resulting in several additional edits.

Those edits

3. A Cover Letter to the Sedona Principles, Third Edition has been prepared

by the drafting team and includes a summary of the public comments re-

ceived and the responses from the drafting team to the public comments. The

Cover Letter is available online at https://thesedonaconference.org/publica-

tion/The%20Sedona%20Principles.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 15

were then reviewed and considered by the WG1 Steering Com-

mittee in September 2017, resulting in this final version.

The Structure of The Sedona Principles

There are three substantive components to this document:

The first component is an Introduction that summarizes the

role of The Sedona Principles and the main modifications made to

Principles and Comments from the Second Edition to the Third

Edition. Additionally, the Introduction provides guidance from

the WG1 Steering Committee and the drafters on interpreting

The Sedona Principles and related Commentaries.

The second component is The Sedona Principles, Third Edi-

tion—fourteen succinct statements that embody the consensus

view of WG1 on a reasonable and balanced approach to the

treatment of electronically stored information in the legal pro-

cess. For reference purposes and to facilitate use of this publica-

tion, following the list of The Sedona Principles, we provide a

chart cross-referencing each of the Principles (and their support-

ing commentary) to key issues in electronic discovery and the

pertinent Federal Rules.

The third component is the detailed Commentaries to the Se-

dona Principles, Third Edition which expand on each Principle

statement to provide analysis and guidance to the bench and bar

on the key legal doctrines and issues implicated by the Princi-

ples, as well as any notable exceptions. Some Comments include

illustrations to assist in defining factual boundaries for the ap-

plication of the Principles. The Commentaries to the Sedona

Principles, Third Edition are divided into logical groupings, and

are supported by select citations and references to key primary

and secondary sources and authorities.

The Third Edition has been thoroughly updated to take into

account evolving views on electronic discovery over the past

16 THE SEDONA CONFERENCE JOURNAL [Vol. 19

decade, based upon the collective experiences of the WG1 mem-

bership in facing the myriad of practical issues that are influenc-

ing the development of the law in this area, the numerous im-

portant court decisions across the country, and, of course, the

2015 amendments to the Federal Rules Civil Procedure.

The Introduction, Principles, and Commentary are interre-

lated and intended to be interpreted as a cohesive document.

Readers are urged to consider not only the written text of the

Principles and the Commentary, but also the interpretive guid-

ance of generally applicable considerations provided in the In-

troduction that apply globally to all the Principles.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 17

Working Group 1 Steering

Committee:

Ex Officio:

Kevin F. Brady, Chair Thomas Y. Allman

Maura R. Grossman William P. Butterfield

Joseph P. Guglielmo Conor R. Crowley

Dean Kuckelman Jonathan M. Redgrave

Cecil A. Lynn, III Ariana J. Tadler

Eric P. Mandel Kenneth J. Withers

Annika K. Martin

Peter Pepiton

Ronni D. Solomon

Gina M. Trimarco

Martin T. Tully

Paul D. Weiner

October 2017

4. The Sedona Principles, Third Edition represents the consensus view of

The Sedona Conference Working Group 1, and does not necessarily repre-

sent the individual views, opinions, or positions of the undersigned, of their

ǰȱȱȱ¢ȱȱęǰȱ¢ǰȱ¢ǰȱȱȱ¢ȱȱȱ¢ȱ

are a partner, shareholder, officer, director, or employee.

5. See In Memoriam, supra.

18 THE SEDONA CONFERENCE JOURNAL [Vol. 19

TABLE OF CONTENTS

INTRODUCTION .................................................................................28

THE SEDONA PRINCIPLES,THIRD EDITION ......................................51

THE SEDONA PRINCIPLES,THIRD EDITION AND THE FEDERAL

RULES .................................................................................54

COMMENTARIES TO THE SEDONA PRINCIPLES,THIRD EDITION .....56

1. Electronically stored information is generally

subject to the same preservation and discovery

requirements as other relevant information. ..............56



Introduction .....................................................................56

Comment 1.a. The scope of discovery is generally

the same for ESI as for other relevant

information, but ESI can present unique

preservation and discovery issues. .......................57

Comment 1.b. The discoverability and

proliferation of ESI has increased the

importance of effective information

governance programs. ............................................59

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. ......65

Comment 2.a. Rule 26(b)(1) demands the

application of the proportionality standard

2018] THE SEDONA PRINCIPLES,THIRD EDITION 19

and makes proportionality an element of the

scope of discovery. ..................................................65



Comment 2.b. Proportionality should apply to all

aspects of the discovery of ESI. .............................67



Comment 2.c. Proportionality of discovery of ESI

should be addressed by the parties and

counsel at the Rule 26(f) meet and confer,

and with the court at the Rule 16(b)

scheduling conference. ...........................................67

Comment 2.d. Parties should address the full

range of costs of preserving, collecting,

processing, reviewing, and producing ESI. ........68

Comment 2.e. Parties objecting to the production

of ESI on proportionality grounds should

state the basis for the objection with

reasonable specificity. .............................................69

3. As soon as practicable, parties should confer and

seek to reach agreement regarding the

preservation and production of electronically

stored information. ........................................................71

Comment 3.a. Parties should attempt to resolve

discovery issues early. ............................................71

Comment 3.b. Cooperation among counsel can

enhance the meet and confer process, reduce

unnecessary delay and expense associated

with non-merit issues, and foster the

overriding objectives of Rule 1. .............................76

Comment 3.c. The early discussions should

include procedural issues relating to form of

production. ...............................................................79

20 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Comment 3.d. The early discussion should

include issues relating to privilege claims

and privilege logs for voluminous ESI. ...............80

Comment 3.e. Search and retrieval parameters

and techniques are appropriate topics for

discussion at an early meet and confer

session. ......................................................................83



Comment 3.f. Preservation of facts and data

considered by expert witnesses is a topic

appropriate for discussion at an early meet

and confer session. ..................................................84



Comment 3.g. Communications with opposing

counsel and the court regarding ESI should

be informed and candid. ........................................85

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. ........87

Comment 4.a. Requests for production should

clearly specify what ESI is being sought. ............87

Comment 4.b. Responses and objections should

clearly identify the scope and limits of the

production. ...............................................................89

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. ........................................................93

2018] THE SEDONA PRINCIPLES,THIRD EDITION 21

Comment 5.a. The preservation analysis includes

two aspects: When the duty arises, and the

scope of ESI that should be preserved. ................93

Comment 5.b. Organizations must prepare for

electronic discovery if they are to reduce cost

and risk. ....................................................................98

Comment 5.c. In assessing the scope of a

preservation duty, as soon as practicable,

parties should consider persons likely to

have relevant ESI, as well as non-custodial

sources of relevant ESI. ........................................101



Comment 5.d. Parties should, in most

circumstances, send notices to preserve

relevant information to persons having

relevant ESI or responsible for maintaining

systems containing relevant ESI. ........................103

Comment 5.e. Preservation efforts need not be

heroic or unduly burdensome. ............................108

Comment 5.f. Ex parte preservation orders are

disfavored absent showing of necessity and,

when issued, should be tailored to require

only preservation of ESI relevant to the

claims and defenses. .............................................110

Comment 5.g. All ESI does not need to be

“frozen.” .................................................................111

Comment 5.h. Absent good cause, preservation

obligations should not extend to disaster

recovery storage systems. ....................................112

Comment 5.i. Preservation efforts should include

consideration of ESI that is not specific to

individual custodians, including shared or

orphaned data. .......................................................116

22 THE SEDONA CONFERENCE JOURNAL [Vol. 19

6. Responding parties are best situated to evaluate

the procedures, methodologies, and technologies

appropriate for preserving and producing their

own electronically stored information. .....................118



Introduction ...................................................................118

Comment 6.a. A responding party should

determine how to meet its own preservation

and production obligations. ................................118



Comment 6.b. Responding parties should be

permitted to fulfill their preservation and

discovery obligations without preemptive

restraint. ..................................................................123

Comment 6.c. Documentation and validation of

discovery processes. .............................................126

Comment 6.d. Rule 34 inspections of electronic

information systems are disfavored. ..................127

Comment 6.e. Use and role of discovery counsel,

consultants, and vendors. ....................................130

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. ....................................................................131

Comment 7.a. Process and burden of proof for

resolving discovery disputes between

parties. ....................................................................131

Comment 7.b. Process for discovering ESI from

non-parties. ............................................................132

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

2018] THE SEDONA PRINCIPLES,THIRD EDITION 23

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. .........................134



Comment 8.a. Scope of search for and

preservation of readily accessible data. .............134



Comment 8.b. Preservation and production of

ESI from sources that are “not reasonably

accessible” under the Federal Rules of Civil

Procedure. ..............................................................138



Comment 8.c. Forensic data collection. .....................140

Comment 8.d. Accessibility of ESI held by

vendors and other non-parties. ...........................142

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. ...................................................................144

Comment 9.a. The scope of discovery of ESI that

is deleted or otherwise not readily apparent. ...144

Comment 9.b. The preservation and production

of deleted ESI. ........................................................145

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. ........................147

Comment 10.a. Parties should employ the

provisions of Federal Rule of Evidence 502 or

state analogues to mitigate the risks of

24 THE SEDONA CONFERENCE JOURNAL [Vol. 19

inadvertent production of attorney-client

privileged and work product protected ESI. ....147



Comment 10.b. Parties should be informed fully

of the protections afforded by Fed. R. Evid.

502............................................................................148



Comment 10.c. Parties should protect against

waiver by inadvertent production through

agreements incorporated in a Fed. R. Evid.

502(d) order. ...........................................................150

Comment 10.d. Fed. R. Evid. 502 does not protect

all privileges or address all privacy concerns. ..151

Comment 10.e. Direct access to ESI or systems

should be sparingly allowed and only upon a

showing of good cause. ........................................152

Comment 10.f. Parties should be informed fully

of the risks of “clawback” or “quick peek”

agreements and enter such agreements only

in exceptional circumstances. ..............................153

Comment 10.g. Parties should consider using

search terms and technology assisted review

(TAR) for privilege reviews, along with other

alternatives that may reduce privilege review

burdens. ..................................................................156

Comment 10.h. Parties should address and

attempt to reach agreement on procedures

for logging privileged and protected work

product information that meet the needs of

the case. ...................................................................158

Comment 10.i. Counsel have ethical obligations

to protect privileged and confidential

information. ...........................................................160

2018] THE SEDONA PRINCIPLES,THIRD EDITION 25

Comment 10.j. Parties should be aware of and

identify personal privacy, trade secret, and

confidential ESI, and properly protect such

information from unlawful or inappropriate

disclosure. ..............................................................162



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. .................164

Comment 11.a. Employing technology to search

for relevant ESI is reasonable, and can create

cost and time savings. ..........................................164

Comment 11.b. Sampling can substantially

reduce the cost of discovery. ...............................167

Comment 11.c. Counsel should oversee the

identification and collection processes. .............167

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. ..................................169

Comment 12.a. Special characteristics of ESI

(metadata and non-apparent/undisplayed

data) may be pertinent to the form in which

ESI should be preserved and produced. ............169

Comment 12.b. Ideally, the form or forms used

for production of ESI should be agreed upon

early. Absent agreement, ESI must be

produced as ordinarily maintained or in a

26 THE SEDONA CONFERENCE JOURNAL [Vol. 19

form or forms reasonably usable to the

requesting party. ...................................................171



Comment 12.b.i. To be “reasonably usable,” the

form of ESI need not necessarily be its native

format or the form in which it is “ordinarily

maintained.” ..........................................................174



Comment 12.b.ii. Parties should consider and

understand the pros and cons of preserving

and producing ESI in native format. ..................177



Comment 12.b.iii. Objections to unreasonable or

non-proportional requests for a form or

forms of production. .............................................181

Comment 12.c. There is no requirement to label

ESI to correspond to the categories in

requests for production. .......................................182

Comment 12.d. Parties need not produce the

same ESI in more than one format. ....................184

13. The costs of preserving and producing relevant

and proportionate electronically stored

information ordinarily should be borne by the

responding party. .........................................................187

Comment 13.a. Factors for allocating the cost of

production. .............................................................187

Comment 13.b. The cost of preservation should

be allocated only in extraordinary

circumstances. ........................................................189

Comment 13.c. Cost allocation cannot replace

reasonable limits on the scope of discovery. .....190

Comment 13.d. Non-party requests must be

narrowly focused to avoid mandatory cost

allocation. ...............................................................191

2018] THE SEDONA PRINCIPLES,THIRD EDITION 27

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. ..............193

Comment 14.a. Historical background and the

adoption of the 2015 amendment to Rule

37(e). ........................................................................193



Comment 14.b. Conditions for imposition of

remedial measures and sanctions. ......................194

Comment 14.c. Remedial measures are intended

to redress prejudice. ..............................................195

Comment 14.d. Sanctions may be appropriate

where the court finds an “intent to deprive.” ...196

APPENDIX A: TABLE OF AUTHORITIES ...........................................199

APPENDIX B: DISCOVERY IN A WORLD OF ELECTRONIC

DOCUMENTS AND DATA—2007 ...........................................206

28 THE SEDONA CONFERENCE JOURNAL [Vol. 19

INTRODUCTION

Discovery in the World of Electronically Stored Information—

A Decade Later

The Second Edition of The Sedona Principles: Best Practices

Recommendations & Principles for Addressing Electronic Document

Production was published in June 2007—the same month the

first iPhone was available to the public and during what

Thomas Friedman has suggested “may be seen as one of the

greatest technological inflection points in history.”

At the time,

the Sedona Conference Working Group on Electronic Document

Retention and Production (WG1) was focused on addressing

and clarifying what now may be well-settled fundamental is-

sues, setting the stage for the decade to come. Much has hap-

pened since, as the volume, variety, and complexity of electron-

ically stored information (ESI), and the velocity with which

technologies have proliferated, have increased dramatically.

In that context, by 2017, the issues surrounding the produc-

tion of ESI have grown in number and complexity. While WG1

has continued to publish numerous in-depth papers analyzing

issues pertaining to the management and discovery of ESI, pro-

tecting privilege, using cooperation to reduce total costs of dis-

covery, and emergent related technologies, The Sedona Principles

had not been updated—until now.

In the interim, some hot-button issues in 2004 and 2007 es-

sentially have become moot (such as whether metadata is even

discoverable), and others have diminished in importance due to

6. Thomas L. Friedman, Dancing in a Hurricane, N.Y. TIMES, Nov. 19, 2016,

available at https://www.nytimes.com/2016/11/20/opinion/sunday/dancing-

in-a-hurricane.html?_r=0 (noting that during the period in and around 2007,

technological developments included the explosion of Facebook, Twitter,

mobile apps, big data analytics, and cloud computing. The same period saw

the emergence of search, retrieval, and review methods for discovery, now

known as technology assisted review.).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 29

technological advances (such as having to restore and produce

from back-up tapes). New issues and technologies—some not

even fathomed in June 2007—now command our attention. Up-

dates to The Sedona Principles were needed. The challenge was to

create a worthy successor to The Second Edition of The Sedona

Principles that would continue to be useful to the bench and bar.

This Introduction is intended to provide interpretive guid-

ance on reading the Principles and Comments in the Third Edi-

tion: (1) to explain the relationship between the Principles and

the Federal Rules; (2) to point out the common themes and con-

siderations of general applicability in the Third Edition; and (3)

to highlight the significant changes made to The Sedona Princi-

ples between the Second and Third Editions, and the terminol-

ogy employed throughout.

1. The Relationship between The Sedona Principles and

the Federal Rules of Civil Procedure

The Sedona Principles is not intended to serve as a Restate-

ment of Law on electronic document preservation and produc-

tion, nor is it intended simply to track and reflect the Federal

Rules of Civil Procedure. From its inception, The Sedona Princi-

ples was intended to serve as best practice recommendations

and principles for addressing ESI issues in disputes—whether

in federal or state court, and whether during or before the com-

mencement of litigation.

In many respects, The Sedona Principles aligns with many of

the Federal Rules of Civil Procedure. However, that correlation

does not necessarily reflect cause and effect. The core mission of

The Sedona Conference is to advance the law in a reasoned and

just way. In fulfilling that mission, WG1 at times has taken ap-

proaches to electronic discovery before the Federal Rules spoke

to an issue, and, on other occasions, WG1 has charted a different

path from the Advisory Committee on Civil Rules. There is no

question that the Third Edition, like the 2007 Second Edition, is

30 THE SEDONA CONFERENCE JOURNAL [Vol. 19

influenced by the same evolving trends in the demands for the

preservation and discovery of ESI in the legal process as have

been addressed by amendments to the Federal Rules.

But the

Third Edition differs from the Federal Rules in certain respects.

For example, amended Rule 37(e) now is closer to positions

WG1 historically has taken on sanctions and remedies for spoli-

ation, as reflected in Principle 14 and the related Comments, but

the two do not align fully. WG1 will continue to urge for further

amendments to the Federal Rules of Civil Procedure that are

more reflective of the consensus positions established in these

Principles and Comments, as well as in WG1’s other, more de-

tailed, publications.

2. Common Themes and Considerations of General Ap-

plicability in The Sedona Principles, Third Edition

Three themes were dominant drivers leading to the 2015

Amendments to the Federal Rules of Civil Procedure: coopera-

tion, proportionality, and increased judicial involvement. The

first two also play a prominent role in The Sedona Principles,

Third Edition.

A. Cooperation in Discovery

The Sedona Conference Cooperation Proclamation

was first

published in July 2008, slightly more than a year after publica-

tion of The Sedona Principles, Second Edition. The stated purpose

of the Cooperation Proclamation was to launch “a coordinated ef-

7. Notwithstanding the dynamism and scale of technological change,

there are many differences between the discovery of ESI and traditional pa-

per discovery that have remained constant, including the volume, duplica-

bility, and persistence of ESI. See Appendix B, Discovery in a World of Elec-

tronic Documents and Data—2007, which addresses the constant

characteristics of ESI that distinguish ESI from paper discovery.

8. The Sedona Conference, Cooperation Proclamation, 10 S

EDONA CONF.J.

331 (2009 Supp.).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 31

fort to promote cooperation by all parties to the discovery pro-

cess to achieve the goal of a ‘just, speedy, and inexpensive de-

termination of every action.’”

The Sedona Conference ex-

pressly sought to tie the value of cooperation in the discovery

process to the stated purpose of the Federal Rules of Civil Pro-

cedure in Rule 1. The leadership of The Sedona Conference in

this area contributed to the 2015 Amendment to Rule 1, estab-

lishing that parties jointly share with the court the responsibili-

ties of securing “a just, speed, and inexpensive determination of

every action.”

The Advisory Committee Note to the 2015

amendment to Rule 1 expressly addresses the issue, stating:

Most lawyers and parties cooperate to achieve

these ends. But discussions of ways to improve the

administration of civil justice regularly include

pleas to discourage over-use, misuse, and abuse of

procedural tools that increase cost and result in

delay. Effective advocacy is consistent with—and

indeed depends upon—cooperative and propor-

tional use of procedure.

WG1 has long promoted the Cooperation Proclamation, and

the subject is addressed throughout the Third Edition, with nu-

merous new references to cooperation. Through the drafting

process of the Third Edition, WG1 has reached consensus that

cooperation can, if practiced appropriately by knowledgeable

and willing counsel, lead to significant efficiencies in the discov-

ery process, and, for those reasons, cooperation between parties

in addressing discovery should be encouraged.

9. Id.

10. F

ED.R.CIV. P. 1.

11. 2015 Advisory Comm. Note to Rule 1.

32 THE SEDONA CONFERENCE JOURNAL [Vol. 19

B. Proportionality in Discovery

Like cooperation, proportionality is vitally important to The

Sedona Principles, Third Edition as it is to the 2015 Rules amend-

ments. Proportionality is addressed expressly and liberally

throughout the Principles and Comments, as the concept ap-

plies to all aspects of discovery from preservation through pro-

duction.

C. Primum Noc Nocere (First, Do No Harm)

In preparing The Sedona Principles, Third Edition, part of the

original charter for the drafting team was primum noc nocere, lit-

erally translated as “first, do no harm.” This Latin phrase gen-

erally is used as a warning to doctors that sometimes it may be

better to refrain from taking any quick action when doing so

could worsen the patient’s situation. For the drafting team, the

patient was The Sedona Principles, WG1’s foundational publica-

tion. But once the drafting team began its work in earnest, it be-

came evident that substantive additions and changes to the

Principles and Commentary were essential if the Third Edition

was to reflect appropriately: (1) the many new or revised WG1

publications since issuance of the Second Edition in June 2007;

(2) changes in the Federal Rules and case law over that time; and

(3) the impact of the rapid development and evolution of tech-

nology, processes, and methodologies. At the same time, the

drafting team sought to avoid causing confusion and raising

new, particularly larger, issues in the interpretation of the Prin-

ciples (i.e., causing “harm”). This goal proved easier said than

done.

The drafting team faced many unanticipated challenges in

seeking to improve the Principles and Commentary to address

the world of discovery as it now exists, while abiding by the

maxim of “first, do no harm.” First, as the drafting team, and

then the Working Group, explored and carefully considered the

2018] THE SEDONA PRINCIPLES,THIRD EDITION 33

Principles and Commentary in the Second Edition, it became in-

creasingly clear that some sections had not aged well in the face

of the substantial evolution of the world of information technol-

ogies and discovery over the past decade. Second, while under-

standing that the Principles and Commentary are intercon-

nected, the drafting team might make clear improvements in

one Comment, only to discover during WG1 meetings that those

edits raised concerns for some members in other Comments. In

the end, the Third Edition of The Sedona Principles reflects The

Sedona Conference’s best efforts to do no harm, while fulfilling

its mission to move the law forward in a reasoned and just way.

D. Principles as Presumptions

The world of discovery, and the law for that matter, is filled

with variables and uncertainty. Rules and presumptions exist to

establish reasonable expectations and guidance on legal, busi-

ness, and ethical decision-making. Sometimes presumptions are

expressly stated; other times they are left unsaid. In drafting The

Sedona Principles, Third Edition a decision was made not to at-

tempt to state every underlying presumption. These presump-

tions fall into three categories.

First, every Principle reflects and incorporates at least some

presumptions in the form of affirmative statements. The Princi-

ples and Commentary cannot account for endless variations of

factual scenarios across tens of thousands of cases and contro-

versies presented before the federal and state courts, and should

be interpreted as conveying presumptions, not absolute posi-

tions or truisms.

Second, the absence of a stated presumption in any Principle

or Comment should not be interpreted as a rejection of any es-

tablished legal presumption that a party is entitled to under ex-

isting rules and case law, or of any corollary right of another

party to rebut that presumption.

34 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Third, the Principles and Commentary incorporate unstated

societal, legal, and ethical norms. By way of example, the Prin-

ciples presume that attorneys will act within the bounds of es-

tablished legal and ethical rules to which they are subject, and

fulfill the duties that they owe to, inter alia, their clients, oppos-

ing parties and counsel, third parties, and the court.

3. The Significant Changes from the Second Edition to

the Third Edition, and Terminology Employed

A. Editorial Considerations

As noted in the Preface, four members of the drafting team

volunteered to serve as a “Style Committee” to review the final

draft of the Third Edition. A primary objective of the Style Com-

mittee was to implement a more consistent use of language than

existed in the prior editions. For example, even though many of

the concepts apply to paper documents and other evidence, the

Principles and Commentary are specifically written to address

discovery of electronically stored information (ESI). For that rea-

son, the term “ESI” is now used uniformly in the Third Edition

where prior editions used variously “ESI,” “data,” “evidence,”

“documents,” “information,” etc.

Other changes in the Third Edition made for the purpose of

uniformity include:

x the term “Rule” is used as a shorthand for the

Federal Rules of Civil Procedure, unless other-

wise specified;

x the term “responding party” is used rather

than using interchangeably “responding

party” and “producing party” as was done in

the prior editions;

x the term “party” includes “counsel,” unless

the action described is typically performed by

2018] THE SEDONA PRINCIPLES,THIRD EDITION 35

legal counsel (e.g., meet and confer), in which

case “counsel” is used;

x the term “relevant” is used to refer to infor-

mation within the scope of discovery, rather

than “responsive,” which is used as appropri-

ate when referring to information requested in

discovery; and

x “organization” is used instead of “corpora-

tion” or “entity,” because “organization” in-

cludes partnerships, government agencies,

and other entities.

B. Overview of the Main Changes Between the Sec-

ond and Third Editions

To assist the reader, the following is an overview of the

changes between the Second and Third Editions.

Principle 1

No change was made to the Principle; however, the follow-

ing changes were made to the Commentary:

x Comment 1.a. has been updated to reference

the 2015 Federal Rules amendments.

x Comment 1.b. has been updated to incorporate

and address the developing concepts of Infor-

mation Governance.

x Former Comment 1.c. regarding preservation

has been moved to Principle 5.

Principle 2

The Principle has been simplified to emphasize the funda-

mental purpose and import of proportionality. The specific fac-

tors considered in applying proportionality are set forth in the

Commentary. Additionally, the word “balance” was selected to

36 THE SEDONA CONFERENCE JOURNAL [Vol. 19

better reflect the application of the proportionality factors as set

forth in the amendments to Rules 26(b)(1) and 26(b)(2)(C)(iii).

The Commentary has been substantially revised and restruc-

tured:

x Former Comment 2.a. has been replaced with

a new Comment 2.a. to describe the amend-

ments to Rules 26(b)(1) and 26(b)(2)(C)(iii)

with emphasis placed on proportionality.

x Comment 2.b. has been added and states that

proportionality should apply to all steps in the

discovery process, including preservation.

x Comment 2.c. has been added and states that

proportionality should be addressed at the

Rule 26(f) conference and Rule 16(b) schedul-

ing conference. This Comment is consistent

with the Advisory Committee Notes to

amended Rule 26(b).

x Comment 2.d. is modified from former Com-

ment 2.b., and the former Comment 2.d. has

been deleted since it does not fit within the

context of the Principle as revised.

x Comment 2.e. in the Third Edition is substan-

tially new. The Comment cross-references

other Comments addressing the accessibility

of ESI. (Former Comment 2.e. has been moved

under Principle 3.)

Principle 3

Principle 3 in the First Edition broke new ground in calling

for early conferences between the parties to address discovery

of ESI, and played a significant role in the 2006 adoption of the

meet and confer obligation now in Rule 26(f)(3). The Principle

2018] THE SEDONA PRINCIPLES,THIRD EDITION 37

itself has been shortened in the Third Edition, but should not be

interpreted as indicating any substantive change in the meaning

or objectives of the Principle.

Edits have been made throughout the Commentary to Prin-

ciple 3 to reflect changes to the Federal Rules in December 2015,

as well as the evolution of information-generating technologies,

and in the practice of electronic discovery generally over the

past decade since publication of the Second Edition.

x Comment 3.a. has been modified to address

discovery from non-parties, the possibility of

discussions between parties about ESI issues

even before litigation begins where counsel are

known, and also the need for parties to discuss

potential quirks about discovery from newer

technologies.

x New Comment 3.b. contains the most signifi-

cant change to Principle 3 from the Second Edi-

tion to the Third Edition, reflecting the impact

of the 2008 Sedona Cooperation Proclamation.

x Comment 3.e. (regarding early discussion of

search techniques) is derived from former

Comment 4.c., as it more naturally relates to

Principle 3 than Principle 4.

x Comment 3.g. (regarding communication with

opposing counsel and the court) is derived

from former Comment 2.e.

Principle 4

In the Principle, the word “clear” was replaced in the Third

Edition with the word “specific” to reflect recent case law better,

including more frequent invocation of Rule 26(g). The change

also better conforms with the 2015 amendments to Rule 26(b) on

the scope of discovery.

38 THE SEDONA CONFERENCE JOURNAL [Vol. 19

x Comment 4.a. has been enhanced with more

specific guidance tracking the 2015 Federal

Rule amendments, particularly the promotion

of the proportionality principles. As with other

Principles, Comment 4.a. includes discussion

of how this Principle applies to subpoena re-

quests to non-parties.

x Comment 4.b. has been modified to reflect the

increased prominence of proportionality in

amended Rule 26(b) and in practice, as well as

the importance of Rule 26(g) and the amend-

ment to Rule 34 regarding the specificity of ob-

jections.

x Former Comment 4.c. has been moved to Com-

ment 3.e., as noted above.

Principle 5

The Principle has been revised in several important but non-

controversial respects. First, in line with the 2015 amendment in

Rule 26(b)(1) to the definition of the scope of discovery, the Prin-

ciple emphasizes that the preservation duty should focus on in-

formation relevant to the claims and defenses in the matter. Sec-

ond, the revised Principle reflects the clarification in case law

and the 2010 Sedona Conference Commentary on Legal Holds

that the duty to preserve is triggered when a claim is reasonably

anticipated or litigation is pending. Third, the Principle seeks to

clarify that proportionality applies to preservation and that it is

unreasonable to preserve each instance of relevant ESI.

12. The Sedona Conference, Commentary On Legal Holds: The Trigger & The

Process, 11

EDONA CONF. J. 265 (2010).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 39

While the basic structure of the Commentary remains un-

changed from the Second Edition, some headings have been re-

vised to provide better signpost guidance to the reader, and the

text has been modified to provide better clarity and reflect

changes over the past decade.

x Comment 5.a. has been amplified to reflect the

two-part nature of the preservation duty—a

trigger, and then proper scoping of the legal

hold. This Comment also reemphasizes that

duplicative instances of identical ESI need not

be preserved, and in keeping with the Commen-

tary on Legal Holds and recent case law, propor-

tionality applies to preservation determina-

tions. New paragraphs have been added to

address preservation by non-parties in re-

sponse to a Rule 45 subpoena, and the special

preservation issues that may arise with social

media sources and other newer information-

generating technologies.

x Comment 5.b. has been updated to reference

The Sedona Conference Commentary on Infor-

mation Governance.

While the concept that an

organization may wish to prepare for elec-

tronic discovery to reduce costs and risk is car-

ried over from the Second Edition, it is empha-

sized that information governance programs

are discretionary, and the absence of such a

program should not be considered in deter-

mining whether an organization has met its

preservation obligation.

13. The Sedona Conference, Commentary on Information Governance, 15

EDONA CONF. J. 125 (2014).

40 THE SEDONA CONFERENCE JOURNAL [Vol. 19

x Comment 5.b. also notes that advances in

backup technologies mean that organizations

may not be dependent on hard-to-access

backup tapes. However, in light of strong sup-

port from the WG1 membership, illustrations

from earlier editions about backup media have

been carried forward to preserve guidance in

those situations where it is appropriate.

x Comments 5.c. and 5.d. have been revised to

reflect the teachings from The Sedona Confer-

ence Commentary on Legal Holds.

Principle 6

No change was made to the Principle itself. The Commen-

tary, however, has been rewritten substantially, and several

Comments reordered.

x Comment 6.a. has been revised completely to

explain the reasoning behind the Principle, i.e.,

why responding parties are best situated as op-

posed to how they should respond.

x Comment 6.b. has been replaced with new

guidance addressing the logical extension of

the Principle that responding parties should be

permitted to proceed in fulfilling their obliga-

tions on their own, taking appropriate note of

The Sedona Conference’s position on support-

ing meaningful cooperation in discovery when

considering the scope and application of this

Principle.

x Comment 6.c. contains elements of former

Comment 6.e. addressing documentation and

validation, but has been expanded to address

2018] THE SEDONA PRINCIPLES,THIRD EDITION 41

all discovery processes rather than just ESI col-

lection. Former Comment 6.c. has been moved

to Comment 6.d.

x Comment 6.d. includes revisions to former

Comment 6.c. addressing Rule 34 inspections.

The title of the Comment has been updated to

clarify intent, and the text has been updated

and expanded.

x Comment 6.e. combines former Comment 6.d.

and Comment 6.f., and has been updated sub-

stantially to reflect the development of the role

of specialized counsel for electronic discovery,

as well as the expanded use of consultants and

vendors over the past decade. Former Com-

ment 6.e. has been moved to and revised in

Comment 6.c.

Principle 7

No changes have been made to Principle 7, and only minor

changes have been made to the Commentary.

x Comment 7.a. includes an expanded title de-

scription, and has been revised to clarify that

the term “inadequate” means the failure to

take reasonable steps to identify, collect, and

produce the requested information.

Principle 8

Principle 8 has been updated substantially to reflect the

changes over the last decade in how ESI is maintained—both

inside and outside the organization, including the quickly di-

minishing role of backup tapes, and the growing role of cloud

computing and multiple storage devices. The revised language

of the Principle also reflects the blurring of the line previously

drawn between active and inactive data. The changes

42 THE SEDONA CONFERENCE JOURNAL [Vol. 19

acknowledge the expanding data mobility, and that there now

may be multiple, readily accessible copies of relevant ESI within

the possession, custody, or control of a party that exist along a

continuum from ESI that is easily accessible from a variety of

sources, to ESI that is nearly impossible to obtain, but can be

produced using extreme means and resources.

The Principle and its Commentary establish a new process

for addressing the preservation and production of unique, rele-

vant ESI, starting with the primary and most readily available

sources, and only moving down the continuum to secondary

and less readily available sources, as necessary, until it is no

longer reasonable or proportionate to the needs of the case. The

Principle thus shifts the focus from what is or is not “reasonably

accessible” ESI to the primary and most readily accessible

sources of relevant ESI, consistent with The Sedona Conference

Commentary on Proportionality in Electronic Discovery.

Principle

8 expressly applies these proportionality concepts to preserva-

tion of ESI.

x Updated Comment 8.a. describes the new

framework, considering potential sources of

discoverable ESI as existing along a continuum

starting with ESI that is “readily accessible”

and used in the ordinary course.

x Comment 8.b. has been revised completely to

address the operation of the “not reasonably

accessible” exception under Rule 26(b)(2)(B),

and how it is distinguished from the concept of

“readily accessible” under this Principle, as

14. The Sedona Conference, Commentary on Proportionality in Electronic

Discovery, 18

EDONA CONF. J. 141 (2017).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 43

well as the application of the proportionality

factors under amended Rule 26(b)(1).

x Comment 8.c. continues to address the issue of

forensic data collection, but has been updated

significantly, with illustrations added to pro-

vide guidance on when forensic collections

would or would not be necessary or appropri-

ate.

x Comment 8.d. has been updated to discuss the

challenges of determining possession, custody,

or control in the preservation and production

of ESI held by vendors and other non-parties,

with reference to the Sedona Conference Com-

mentary on Rule 34 and Rule 45 “Possession, Cus-

tody, or Control.”

Principle 9

The Principle has not been changed; the Commentary has

been updated.

x Comment 9.a. is amended to incorporate addi-

tional categories of ESI that are not readily ap-

parent. Comment 9.a. also includes a discus-

sion of the need to consider proportionality

factors in considering whether to preserve or

produce such forms of ESI. Finally, the illustra-

tions have been updated to include additional

references to the form of production.

15. The Sedona Conference, Commentary on Rule 34 and Rule 45 “Possession,

Custody, or Control,” 17 S

EDONA CONF. J. 467 (2016).

44 THE SEDONA CONFERENCE JOURNAL [Vol. 19

x Comment 9.b. has been amended to remove

the cross-reference to Principle 8 and Com-

ment 8.d. pertaining to forensic collection.

Principle 10

The Principle has been updated in three important respects:

First, the Principle is directed to “parties” (rather than simply

“responding parties”) because all parties—including parties

who receive information in discovery—have obligations with

respect to privileged and protected information. Second, the

Principle has been modified to refer specifically to privacy obli-

gations because of the increasing importance of privacy in the

United States and abroad. Third, “other legally enforceable re-

strictions” has been added to account for ESI that may be subject

to contractual non-disclosure agreements or other restrictions.

The Commentary has been revised substantially and en-

hanced (five Comments have become ten). Most important,

Comments 10.a.—10.d. provide guidance with respect to Fed-

eral Rule of Evidence 502 (enacted in 2008), and the broad pro-

tections available under its subsection (d).

x New Comment 10.d. cautions that Rule 502

only applies to attorney-client privilege and

work product protections, and should not be

mistaken as a panacea for other protected or

restricted information.

x Comment 10.e. replaces former Comment 10.b.

and warns that direct access to ESI or systems

should be allowed sparingly and only upon a

showing of good cause.

x Comment 10.f. addresses issues partially cov-

ered in former Comment 10.d. (namely, the

risks associated with “clawback” or “quick

2018] THE SEDONA PRINCIPLES,THIRD EDITION 45

peek” agreements), notes that a Rule 502(d) or-

der does not eliminate all risks associated with

“quick peek” agreements, and cautions that a

“quick peek” agreement should only be en-

tered in limited circumstances and after as-

sessing pertinent risks.

x New Comment 10.g. provides guidance on

how newer technologies (including technol-

ogy assisted review (TAR)) may be used to fa-

cilitate privilege reviews. Similarly, new Com-

ment 10.h. urges that parties attempt to reach

agreement on procedures for logging privi-

leged or protected work product information

in a manner that meets the needs of the case.

x New Comment 10.i. addresses counsel’s ethi-

cal duties to protect confidential and privi-

leged information, which, as manifested by the

2012 amendments to the ABA Model Rules of

Professional Conduct, have become more

acute with the evolution and explosion of ESI.

x Finally, new Comment 10.j. encourages parties

to be aware of and identify ESI that is subject

to personal privacy, trade secret, and confiden-

tiality obligations.

Principle 11

The Principle has been revised to substitute this language,

“using technology and processes, such as sampling, searching,

or the use of selection criteria,” for the prior, “using electronic

tools and processes, such as data sampling, searching, or the use

of selection criteria, to identify data reasonably likely to contain

relevant information.”

46 THE SEDONA CONFERENCE JOURNAL [Vol. 19

x Comments 11.a. and 11.b. have been updated

to incorporate recent Sedona commentaries,

including those on search and retrieval, and

proportionality; to reflect the updates to Prin-

ciple 6 and its related Comments; and to in-

clude references to recent case law and litera-

ture on search and retrieval methodology.

x Consistent with new Comment 10.i. on recent

enhancements to ethical obligations, new

Comment 11.c. explains that counsel should

oversee the identification and collection pro-

cesses, even if technologies or specialized ven-

dors are used.

Principle 12

Principle 12 and its associated Commentary have been re-

vised substantially from the Second Edition. In 2007, the focus

was on the possibility of having to produce certain metadata

that would enable “the receiving party to have the same ability to

access, search, and display the information as the producing

party” where appropriate to the ESI and the needs of the case.

(Emphasis added.) In the Third Edition, the Principle has been

revised to eliminate the prefatory language about party agree-

ment or court order, and to provide that ESI should be produced

“in the form or forms in which it is ordinarily maintained or that

is reasonably usable given the nature of the ESI and the propor-

tional needs of the case.” (Emphasis added.) This change reflects

the emphasis placed on proportionality in the 2015 amendments

to the Federal Rules, and recognizes that some ESI relevant to a

matter may reside in an enormously complex system, of which

only some ESI and some metadata is relevant to the case or

needed to render the ESI produced reasonably usable.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 47

The Commentary has been revised substantially as well, in

part to reflect that the proper functioning of many search, re-

trieval, and review platforms developed since 2007 depend on

various metadata fields being available, and the tactical dispar-

ity that can exist if a requesting party is deprived of metadata

necessary to use sophisticated technologies in handling and re-

viewing large ESI productions.

x Comment 12.a. explains at length the different

kinds of metadata and not readily apparent,

user-created information that may be associ-

ated with ESI in its native format.

x Comment 12.b., like Comment 3.c., suggests

that the form or forms for production be dis-

cussed and agreed upon early in a case, urges

that parties not demand forms of production

for which they have no practical need, notes

that in a majority of instances so-called TIFF+

productions are “reasonably usable,” and pro-

vides guidance on factors parties and courts

should consider in determining appropriate

forms of production. The subparts within

Comment 12.b. point out that “reasonably us-

able” is not synonymous with native format,

that parties should understand and consider

the pros and cons of native production, and

that responding parties may be subject to re-

peat productions and added costs if they uni-

laterally choose a form of production later

found to be not reasonably usable.

x New Comment 12.c. addresses an issue under

Rule 34(b)(2)(E) that has arisen in several

cases—namely whether ESI when produced

must be labeled to correspond to the categories

48 THE SEDONA CONFERENCE JOURNAL [Vol. 19

in requests—and explains why there should be

no such requirement.

x Comment 12.d. addresses the same subject as

in the Second Edition, but has been expanded

to address the additional requirements for re-

sponses set forth in the 2015 amendments to

Rule 34(b)(2)(C), and provides illustrations

concerning how a party may avoid having to

produce in more than one format.

Principle 13

Principle 13 has been simplified to recognize that the costs of

“preserving and producing” (rather than “retrieving and re-

viewing”) “relevant and proportionate” ESI should be borne by

the responding party.

The Commentary has been revised substantially. Across all

Comments, the term “cost allocation” is used, rather than “cost

shifting,” consistent with amended Rule 26(c)(1)(B).

x Comment 13.a. is updated to reflect the

amended Federal Rules’ treatment of cost allo-

cation and its interplay with the proportional-

ity analysis under amended Rule 26(b)(1).

x New Comment 13.b. explains that cost alloca-

tion may apply to preservation, but only in ex-

traordinary circumstances.

x Comment 13.c. urges that cost allocation not be

used as an excuse to permit discovery beyond

that permitted under amended Rule 26(b)(1).

x Finally, as with Comments to other Principles,

new Comment 13.d. addresses the need to fo-

cus non-party requests under Rule 45 nar-

rowly to avoid mandatory cost allocation. This

2018] THE SEDONA PRINCIPLES,THIRD EDITION 49

Comment also notes that relationships be-

tween parties and certain third-parties may

cause a court to be less likely to allocate costs.

Principle 14

Principle 14 has been revised to reflect evolving case law and

the 2015 amendment to Rule 37(e), and to state that remedial

measures, sanctions, or both may be awarded for a breach of a

duty to preserve relevant ESI—depending on the degree of prej-

udice and whether the spoliating party acted with intent to de-

prive another party of the use of relevant ESI. The revised Prin-

ciple is not intended to reflect a substantial departure from the

basic tenets of the Second Edition.

Because the Principle is intended to provide guidance in

state as well as federal courts, and to move the law forward (ra-

ther than serve as a restatement), the Commentary varies in cer-

tain respects from amended Rule 37(e). Key aspects of the Com-

mentary include the following:

x Comment 14.a. replaces prior Comment 14.a.

and provides the historical context for changes

to Rule 37(e) from the Second Edition to the

2015 Rule amendment.

x Comment 14.b. is revised to reflect the change

in focus from degrees of culpability to the con-

ditions for the imposition of either remedial

measures or sanctions.

x Comment 14.c. has been updated. As one ex-

ample, Comment 14.c. discusses prejudice re-

quired to warrant remedial measures and in-

cludes an illustration as to how the timeliness

of a challenge may bear on prejudice.

x Comment 14.d., like amended Rule 37(e),

states that sanctions may be appropriate where

50 THE SEDONA CONFERENCE JOURNAL [Vol. 19

the court finds an intent to deprive, but, unlike

the amended Rule, concludes that sanctions

also may be appropriate for an “incompetent

spoliator”—one who intends to deprive the

other party of ESI, but fails to eliminate it com-

pletely.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 51

THE SEDONA PRINCIPLES,THIRD EDITION

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 electroni-

cally 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 consid-

eration of the importance of the issues at stake in the ac-

tion, the amount in controversy, the parties’ relative ac-

cess to relevant information, the parties’ resources, the

importance of the discovery in resolving the issues, and

whether the burden or expense of the proposed discov-

ery outweighs its likely benefit.

3. As soon as practicable, parties should confer and seek to

reach agreement regarding the preservation and produc-

tion of electronically stored information.

4. Discovery requests for electronically stored information

should be as specific as possible; responses and objec-

tions to discovery should disclose the scope and limits of

the production.

5. The obligation to preserve electronically stored infor-

mation requires reasonable and good faith efforts to re-

tain information that is expected to be relevant to claims

or defenses in reasonably anticipated or pending litiga-

tion. However, it is unreasonable to expect parties to take

every conceivable step or disproportionate steps to pre-

serve each instance of relevant electronically stored infor-

mation.

52 THE SEDONA CONFERENCE JOURNAL [Vol. 19

6. Responding parties are best situated to evaluate the pro-

cedures, methodologies, and technologies appropriate

for preserving and producing their own electronically

stored information.

7. The requesting party has the burden on a motion to com-

pel to show that the responding party’s steps to preserve

and produce relevant electronically stored information

were inadequate.

8. The primary sources of electronically stored information

to be preserved and produced should be those readily ac-

cessible 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 re-

sponding party should not be required to preserve, re-

view, or produce deleted, shadowed, fragmented, or re-

sidual electronically stored information.

10. Parties should take reasonable steps to safeguard elec-

tronically stored information, the disclosure or dissemi-

nation of which is subject to privileges, work product

protections, privacy obligations, or other legally enforce-

able restrictions.

11. A responding party may satisfy its good faith obligations

to preserve and produce relevant electronically stored in-

formation by using technology and processes, such as

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 ordi-

narily maintained or that is reasonably usable given the

nature of the electronically stored information and the

proportional needs of the case.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 53

13. The costs of preserving and producing relevant and pro-

portionate electronically stored information ordinarily

should be borne by the responding party.

14. The breach of a duty to preserve electronically stored in-

formation may be addressed by remedial measures, sanc-

tions, 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.

54 THE SEDONA CONFERENCE JOURNAL [Vol. 19

THE SEDONA PRINCIPLES,THIRD EDITION

AND THE

FEDERAL RULES

Topic of

Discussion

Sedona

Principle

Federal Rules of

Civil

Procedure

(Dec 2015)

Discovery Scope

Principles 1, 2, 5,

6, 8, 9, 11

Rule 26(b)(1);

Rule 16(b)(3)(B)(ii)

Preservation

Obligations

Principles 1, 3, 5,

6, 8, 9, 12

Rule 26(f)(2) & (3);

Rule 16(b)(3)(B)(iii)

Form of

Preservation

Principle 12 n/a

Metadata Principle 12 n/a

Form of Production Principles 3, 4, 12

Rule 26(f)(3);

Rule 34(b)

Meet & Confer Principle 3 Rule 26(f)

Initial Disclosures Principle 3 Rule 26(a)(1)

Preservation Orders Principle 5 n/a

Discovery Requests

& Responses

Principles 4, 6

Rule 26(d)(2);

Rule 34

Tiered Production Principle 8 Rule 26(b)(2)(B)

Cost Shifting Principle 13

Rule 26(b)(2)(B);

Rule 26(c)

Proportionality

Limits

Principle 2

& passim

Rule 26(b)(1)

Identity of

Unsearched Sources

Principle 4

Rule 26(b)(2)(B);

Rule 34(b)(2)(C)

16. Unless otherwise noted.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 55

Topic of

Discussion

Sedona

Principle

Federal Rules of

Civil

Procedure

(Dec 2015)

Protecting Privilege

Avoiding Waiver

Principles 3, 10

Rule 26(b)(2)(5);

Federal Rule of

Evidence 502

Spoliation Remedial

Measures &

Sanctions

Principle 14 Rule 37(e)

Cooperation

Principles 3, 6

& passim

See Rule 1,

2015 Advisory

Committee Note

Non-party

Discovery

Principles 3, 5, 7,

Rule 45

Search & Retrieval

Principles 3, 10,

n/a

56 THE SEDONA CONFERENCE JOURNAL [Vol. 19

COMMENTARIES TO

THE SEDONA PRINCIPLES,THIRD EDITION

1. Electronically stored information is generally subject to

the same preservation and discovery requirements as

other relevant information.

Introduction

Whether dealing with electronically stored information (ESI)

or paper copies, the scope of discovery in federal court is non-

privileged matter that is relevant to the claims and defenses in

the case,

and proportional to the needs of the case.

But, as

explained in the Introduction, ESI has become so pervasive that

the volume of ESI involved in most cases dwarfs the volume of

any paper records. This makes ESI the driving force behind the

scope of preservation and discovery requirements in many

cases, and behind the litigation-related aspects of many effective

information governance programs.

17. The 2015 amendments to Rule 26(b)(1) address the common misper-

ception that the scope of discovery extends beyond relevance if the requested

discovery is likely to “lead to the discovery of admissible evidence.” See

OMM. ON RULES OF PRACTICE AND PROCEDURE, REPORT OF JUDICIAL CONF. TO

CHIEF JUSTICE, app. B-10 (Sept. 2014) (“that phrase was never intended to

have that purpose”); 1946 Advisory Comm. Note to Rule 26 (“admissibility

at trial should not be the test as to whether the information sought is within

the scope of proper [deposition] examination”). Some state court rules

broaden the scope of discovery from “claims and defenses” to “the subject

matter involved in the pending litigation.” E.g., A

LASKA CIV. R. 26(b)(1).

18. Rule 26(b)(1). See Principle 2 regarding proportionality.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 57

Comment 1.a. The scope of discovery is generally the

same for ESI as for other relevant infor-

mation, but ESI can present unique preser-

vation and discovery issues.

The Federal Rules of Civil Procedure were amended in 2006

“to confirm that discovery of electronically stored information

stands on equal footing with discovery of paper documents.”

This clarification ended the argument that discovery only ap-

plied to information that had been intentionally created or

viewed by human users—to the exclusion of metadata and other

system information generated automatically by computers.

Thus, ESI is generally subject to the same “relevant to the claims

and defenses” scope of discovery that governs paper records.

But ESI presents special issues in at least three areas, as ex-

plained below.

First, some court rules are expressly limited to ESI. For ex-

ample, Rule 26(b)(2)(B) provides “specific limitations” on ESI

“that the party identifies as not reasonably accessible because of

undue burden or cost.” See Comment 8.b. Another example is

Rule 34, which governs the form of production for ESI. See Prin-

ciple 12. Other Rules that specifically refer to ESI include

16(b)(3)(B)(iii) (scheduling conferences), 26(a)(1) (initial disclo-

sures), 26(f) (pretrial conference), 37 (sanctions), and 45 (subpoe-

nas).

Some state rules also are expressly limited to ESI.

Second, some court rules are not expressly limited to ESI, but

are more significant for ESI than for paper records. For example,

19. 2006 Advisory Comm. Note to Rule 34. The Note also points out that

references in the Rules to “documents” “should be interpreted to include

electronically stored information as circumstances warrant.” Id.

20. Rule 45(a)(1)(A)(iii) explicitly includes ESI within the types of infor-

mation that may be demanded.

21. E.g., T

EX.R.CIV. P. 196.4.

58 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Rule 26(b)(1) now explicitly limits the scope of discovery to in-

formation that is both relevant and “proportional to the needs

of the case.” The Rule specifies the factors to determine propor-

tionality: “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 dis-

covery in resolving the issues, and whether the burden or ex-

pense of the proposed discovery out-weighs its likely benefit.”

Although this “proportionality” analysis applies to both paper

records and ESI, the volume and complexity of ESI, along with

the various burdens and technical implications of different ESI

formats, generally makes these limitations on scope of discovery

much more significant for ESI than for paper records. Many

state rules, local rules, and pilot projects also adopt these and

further limitations to the scope of discovery.

Similarly, the

rules regarding privilege and work product do not expressly

differentiate between paper records and ESI, but as explained in

Principle 10, ESI presents unique risks and opportunities for

22. The 2015 amendments to Rule 26 moved these proportionality con-

cepts from 26(b)(2)(C) to 26(b)(1), to restore proportionality “to [its] original

place in defining the scope of discovery,” specifically “as an express compo-

nent of the scope of discovery,” and “again reflect[] the need for continuing

and close judicial involvement in the cases that do not yield readily to the

ideal of effective party management.” In doing so, the Advisory Committee

also noted that, in 2000, Rule 26(b)(1) had been amended to add a specific

cross-reference to the proportionality provisions then in subdivision (b)(2),

because “‘the Committee ha[d] been told repeatedly that courts have not im-

plemented these limitations with the vigor that was contemplated.’” 2015

Advisory Comm. Note to Rule 26(b)(1).

23. See, e.g., Seventh Circuit Electronic Discovery Pilot Program, Model

Standing Order (Rev. May 11, 2011), available at http://www.discoverypi-

lot.com/sites/default/files/StandingOrde8_10.pdf; Seventh Circuit Electronic

Discovery Pilot Program, Principles Relating to the Discovery of Electronically

Stored Information,

Principle 2.04(d) (Rev. Aug. 1, 2010), available at

http://www.discoverypilot.com/sites/default/files/Principles8_10.pdf.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 59

dealing with these issues. The duty to preserve ESI implicates

special considerations, as explained in Principle 5. And pretrial

conferences are “particularly important with respect to ESI.”

See Principle 3 regarding early preservation and production

conferences.

Third, the volume of ESI that is created and distributed

within and among organizations is growing exponentially. As

explained in Comment 1.b., the discoverability and proliferation

of ESI means that organizations can benefit even more from ef-

fective information governance programs that reduce the cost

and risk of meeting discovery obligations.

Comment 1.b. The discoverability and proliferation of

ESI has increased the importance of effec-

tive information governance programs.

“Information Governance” means “an organization’s coordi-

nated, inter-disciplinary approach to satisfying information

compliance requirements and managing information risks

while optimizing value.”

As such, Information Governance

(“IG”) encompasses and seeks to reconcile the various legal and

compliance requirements and risks addressed by different infor-

mation-focused disciplines, such as records and information

management, data privacy, information security and protection,

compliance, data governance, data storage and archiving, and

electronic discovery. Legal and compliance requirements in-

clude the “retention” requirements of statutes or regulations,

the “privacy” requirements (e.g., HIPAA or HiTech), and the

24. 2006 Advisory Comm. Note to Rule 26(f).

25. See The Sedona Conference, Commentary on Information Governance, 15

EDONA CONF. J. 125, 126 (2014).

60 THE SEDONA CONFERENCE JOURNAL [Vol. 19

“preservation” requirements once litigation is reasonably antic-

ipated.

Ideally, IG programs should help meet regulatory re-

tention requirements (e.g., Sarbanes Oxley), meet preservation

requirements once litigation is reasonably anticipated, and meet

the business needs of the organization.

There is often a direct correlation between an organization’s

IG program and the ease with which it can search for, identify,

and produce information. A well-executed IG program can im-

prove efficiency at all levels in an organization by assuring the

right information is readily available to the people who need it

when they need it. IG programs are also the keystone of infor-

mation security and privacy. The Sedona Conference Commen-

tary on Information Governance (the “Sedona IG Commentary”)

includes a comprehensive description of these major compo-

nents of IG programs. This Comment is focused on the im-

portance of IG to an organization’s ability to meet its discovery

obligations.

To find ESI, protect it, and access and produce it, an organi-

zation must know (or be able to readily find out) what relevant

ESI it has and where it keeps it. Ideally, the organization can

determine who has access to the ESI and be confident that the

ESI is “clean” and not corrupted. To do this, an organization

should strive toward managing or governing its ESI from crea-

tion to disposition.

The scope and vigor of an organization’s IG program can di-

rectly affect its ability to find and produce ESI relevant to the

claims and defenses in litigation. However, attaining “perfect”

IG over all of an organization’s ESI is extremely difficult—if not

impossible—to achieve, given the sheer amount of ESI at issue,

26. See The Sedona Conference, Commentary On Legal Holds: The Trigger &

The Process, 11 S

EDONA CONF. J. 265 (2010).

27. 15 S

EDONA CONF. J. 125 (2014).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 61

its exponential rate of growth, and the ever-expanding means

and locations for the storage and transmission of ESI. Moreover,

despite the compelling logic of IG for many organizations,

adopting such a program is neither a legal nor a business imper-

ative. Accordingly, an organization’s compliance with discov-

ery obligations cannot be judged by the state or lack of its IG

program. Rather, the point is simply that—all things being

equal—an organization with a comprehensive IG program will

manage its litigation more easily and less expensively than an

organization with a less comprehensive program.

In many organizations, retention is still frequently accom-

plished through the use of detailed records retention schedules

tailored to records series created by employees in specific busi-

ness units. Because these schedules were created when hard-

copy records were the norm, they tended to be extremely gran-

ular; today, with ESI being the predominant form of organiza-

tional information, organizations are increasingly willing to

consider alternative approaches for managing ESI, including

collapsing and simplifying categories of ESI records into larger

retention buckets, tailoring retention schedules to fit specific

business units, and adopting automated approaches to catego-

rizing and disposing of ESI, all in order to mitigate organiza-

tional risk and increase efficiency. As emphasized in the Sedona

IG Commentary, IG programs should encourage not only reten-

tion of ESI, but also the effective, timely, and consistent disposal

of ESI that no longer needs to be retained or preserved.

The

28. Arthur Andersen LLP v. United States, 544 U.S. 696, 704 (2005) (“‘Doc-

ument retention policies,’ which are created in part to keep certain infor-

mation from getting into the hands of others, including the Government, are

common in business. It is, of course, not wrongful for a manager to instruct

his employees to comply with a valid document retention policy under ordi-

nary circumstances.”).

62 THE SEDONA CONFERENCE JOURNAL [Vol. 19

requirements, benefits, and risks should be balanced. For exam-

ple, the rotation cycle for backups

should balance the likeli-

hood and business value of restoring the data for business pur-

poses against the potential cost and risk of preservation and

review if the tapes contain unique information that is both rele-

vant and proportional in some later-filed litigation.

Further, it

may be appropriate to use technology to limit the size of email

accounts,

or limit how long email can be retained without

some action by the record owner. As explained in Principle 5,

issuing legal holds and taking other reasonable steps may be re-

quired to prevent deletion of relevant ESI once a duty to pre-

serve is created by pending or anticipated litigation, or by some

regulatory investigations. An effective IG program may also in-

clude audits to determine whether the policies are being fol-

lowed.

An IG program is more effective if it addresses ESI created

by all of the information technologies used by employees of the

organization. New technologies that represent novel preserva-

tion and discovery challenges are always being developed and

adopted,

which means that effective IG programs must contin-

ually adapt.

29. Similar issues can be presented by “versioning,” “recycle bins,” and

“trash.”

30. This balancing may result in organizations keeping backups only as

long as it would reasonably take the organization to interrupt the rotation

period in response to a disaster. See Comment 5.h.

31. Mailbox limitations can lead to more problems than solutions; for ex-

ample, if employees subvert the purpose of the limitations by moving emails

to storage locations that are even more difficult to manage (e.g., PSTs). This

is an example of why organizations must not only communicate what the IG

policy is, but why it is important to follow the policy.

32. Just as email was once “new,” more recent entrants include instant

messaging, cloud computing, mobile devices, social media, and text mes-

sages.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 63

Ideally, before allowing or adopting new technology, in ad-

dition to addressing the typical privacy and security issues, or-

ganizations should ask: (1) what is the business value of the

technology; (2) what are the costs and risks created by the tech-

nology; and (3) how can the costs and risks be mitigated?

Costs and risks may increase if the technology makes it more

difficult to preserve or collect relevant ESI for litigation. For ex-

ample, mobile devices that are not synchronized with the organ-

ization’s servers may require physical collection of the mobile

device to meet preservation or discovery obligations if there is

unique, relevant ESI on the device that the IT or legal group can-

not collect from the organization’s servers. This may be even

more of a problem for texts, which can “roll off” the phone as

memory is used up.

Review cost for texts can also be exponen-

tially higher because the texts are more difficult to sort by sub-

ject or author, and because of the shorthand that is frequently

used in text messages. Notwithstanding the presence of such

ESI on the device, it may not be necessary to image the device if

the costs, burdens, and other issues associated with imaging the

device outweigh the benefits of retrieving unique, relevant ESI

from the device. Indeed, wholesale text message retention is

regularly disproportionate for both sides of the litigation, e.g.,

in a wage and hour class action where employees use text mes-

saging on their personal devices for work. Content management

and collaboration applications can result in unmanaged ESI be-

cause there may not be any clear “data-owner” who is respon-

sible for managing and deleting the ESI at the appropriate time.

33. In addition to storage constraints, how a user or an organization has

configured the device settings also may determine how long texts are re-

tained. As such, further (and potentially manual) steps may need to be taken

to modify the settings to avoid automated deletion. Additionally, organiza-

tions should consider the risks attendant to losing, replacing, and upgrading

mobile devices.

64 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Similarly, consumer-oriented file sharing and synchronization

services may result in over-retention (and lack of a “data-

owner”) of the transferred data that remains in the service after

the transfer—even if the organization otherwise properly man-

ages the ESI in its possession. Simply knowing where employ-

ees are able to store ESI can reduce the time and expense of

meeting preservation and discovery obligations. See Principle 5

regarding legal holds.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 65

2. When balancing the cost, burden, and need for elec-

tronically 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’ rela-

tive access to relevant information, the parties’ re-

sources, the importance of the discovery in resolving

the issues, and whether the burden or expense of the

proposed discovery outweighs its likely benefit.

Comment 2.a. Rule 26(b)(1) demands the application of

the proportionality standard and makes

proportionality an element of the scope of

discovery.

Although commentators, including many jurists, have em-

phasized the use of the proportionality standard—embodied in

the Federal Rules of Civil Procedure since 1983—to manage the

costs and burdens of the preservation and discovery of ESI

while concurrently meeting the requirements of the litigation,

parties have not consistently applied the standard to evaluate

and manage discovery. This inconsistency led to the 2015

amendment to Rule 26(b), specifically, moving the proportion-

ality factors from Rule 26(b)(2) (“Limitations on Frequency and

Extent”) to Rule 26(b)(1) (“Scope of Discovery”). By moving pro-

portionality into the definition of the scope of discovery, the

Rule reinforces that proportionality is on a par with relevance

when negotiating and formulating preservation and discovery

plans, propounding and responding to discovery requests, stag-

ing and scheduling productions, and negotiating and adjudicat-

ing discovery disputes. As explained by the Advisory Commit-

tee: “This change reinforces the Rule 26(g) obligation of the

66 THE SEDONA CONFERENCE JOURNAL [Vol. 19

parties to consider these factors in making discovery requests,

responses, or objections.”

Rule 26(b)(1) specifies the factors to determine proportional-

ity:

Parties may obtain discovery regarding any non-

privileged matter that is relevant to any party’s

claim or defense and proportional to the needs of

the case, considering 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 dis-

covery in resolving the issues, and whether the

burden or expense of the proposed discovery out-

weighs the benefit.

The proportionality standard is a balancing test that requires

consideration of more than just “the amount in controversy.”

Instead, all of the factors should be weighed to determine

whether the burden or expense of the proposed discovery out-

weighs the benefit. For example, the “importance of the issues

at stake in the action” not only applies to the import of the issues

to the immediate parties, but also may require addressing

broader issues related to legal, statutory, regulatory, and public

policy issues embodied in legislation or regulations. As another

example, if the proposed discovery is not likely to be important

34. 2015 Advisory Comm. Note to Rule 26(b)(1); see also JOHN G. ROBERTS,

R., 2015 YEAR-END REPORT ON THE FEDERAL JUDICIARY, 6 (Dec. 31, 2015),

https://www.supremecourt.gov/publicinfo/year-end/2015year-endre-

port.pdf (“Rule 26(b)(1) crystalizes the concept of reasonable limits on dis-

covery through increased reliance on the common-sense concept of propor-

tionality . . . .”).

35. See 2015 Advisory Comm. Note to Rule 26(b)(1) (“It also is important

to repeat the caution that the monetary stakes are only one factor, to be bal-

anced against other factors.”).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 67

in resolving the issues, the scope of discovery may be narrower,

even if the monetary amount in controversy is significant. Thus,

weighing all of the factors may result in discovery that is

broader or narrower than the scope would be if the amount in

controversy were the only consideration. Accordingly, parties

should consider all of the proportionality factors when pro-

pounding and responding to discovery requests, negotiating the

scope and form of the production of ESI, and moving to compel

and responding to motions to compel discovery.

Comment 2.b. Proportionality should apply to all as-

pects of the discovery of ESI.

Proportionality should be considered and applied by the

court and parties to all aspects of the discovery and production

of ESI including: preservation; searches for likely relevant ESI;

reviews for relevancy, privilege, and confidentiality; prepara-

tion of privilege logs; the staging, form(s), and scheduling of

production; and data delivery specifications. The proportional-

ity factors may also impact cost allocation. See Principle 13.

Comment 2.c. Proportionality of discovery of ESI should

be addressed by the parties and counsel at

the Rule 26(f) meet and confer, and with the

court at the Rule 16(b) scheduling confer-

ence.

Issues regarding proportionality should be addressed at the

Rule 26(f) conference. Parties should be prepared to provide ac-

curate information regarding the anticipated burdens and ben-

36. See Hon. Elizabeth J. Laporte & Jonathan M. Redgrave, A Practical

Guide for Achieving Proportionality Under New Federal Rule of Civil Procedure 26,

9 F

ED.CTS.L.REV. 19 (2015) (proposing a “proportionality matrix” to analyze

and apply proportionality).

68 THE SEDONA CONFERENCE JOURNAL [Vol. 19

efits of preserving, retrieving, processing, reviewing, and pro-

ducing ESI that is likely to be or contain information relevant to

the claims and defenses in the case, to the extent they assert that

these steps are disproportionate. Because the “importance of the

discovery in resolving the issues” can be a key factor in the bal-

ancing of burden and benefit, a fruitful discussion also requires

a clear statement of the claims and defenses. Similarly, because

notice pleading does not require plaintiffs to specify their dam-

age claim, parties should be prepared to discuss and explain the

likely range of damages, and any non-monetary stakes, to the

extent they claim these factors are important to the proportion-

ality analysis.

The parties and the court should be aware that discussions

held early in the action are limited by the information available

to the parties, and that proportionality may be revisited as the

action evolves. The parties should summarize their discussions

of proportionality and, where different, their respective anal-

yses of the proportionality considerations in the parties’ report

to the court, and be prepared to discuss any significant propor-

tionality issues at the Rule 16(b) conference with the court.

Comment 2.d. Parties should address the full range of

costs of preserving, collecting, processing,

reviewing, and producing ESI.

Evaluating the need to produce ESI requires that a balance

be struck between the burdens and need for ESI, taking into ac-

count the technological feasibility and realistic costs involved.

Discovery burdens should be proportional to the amount in

controversy and the nature of the case, including consideration

of the importance of issues at stake in the litigation. See Com-

ment 2.a. In fact, Rule 26(g)(1)(B)(iii) requires counsel to certify

that discovery requests are proportional. If proportionality is

not observed, discovery costs may prevent the just, speedy, and

inexpensive determination of litigation as Rule 1 contemplates.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 69

Costs cannot be calculated solely in terms of the expense of

computer technicians to retrieve the ESI, but must factor in other

litigation costs, including the accessibility of the ESI, the inter-

ruption and disruption of routine business processes and IG

practices, and the costs of reviewing the ESI. These burdens on

information technology personnel and the resources required to

review ESI for relevance, privilege, confidentiality, and privacy

should be considered in any calculus of whether to allow dis-

covery, and, if so, under what terms. In addition, the non-mon-

etary costs (such as the invasion of privacy rights, risks to busi-

ness and legal confidences, and risks to privileges) should be

considered.

Comment 2.e. Parties objecting to the production of ESI

on proportionality grounds should state

the basis for the objection with reasonable

specificity.

Moving the proportionality requirement to the scope of dis-

covery provisions in Rule 26(b)(1) emphasizes that discovery

that is not proportional to the needs of the case is objectionable

as outside the permitted scope of discovery. Further, a “propor-

tionality” objection under Rule 26(b)(1) is different from a “not

reasonably accessible” objection under Rule 26(b)(2)(B), even

though some of the same cost and burden considerations apply.

In the latter case, the court may order the discovery to go for-

ward, notwithstanding the costs and burdens; in the former, if

the balance of factors tips against the discovery being propor-

tional to the needs of the case, the discovery requested is imper-

missible because it is beyond the scope of discovery. See Com-

ment 2.a.

Also, proportionality is not limited to the burden of

37. See Comment 8.b. for a full discussion of the Rule 26(b)(2)(B) limitation

and not reasonably accessible sources of ESI.

70 THE SEDONA CONFERENCE JOURNAL [Vol. 19

accessing ESI—it may include the burden of collecting, review-

ing, hosting, and producing the ESI.

Rule 34(b)(2)(B) requires that objections should state “with

specificity the grounds for objecting.” A balance should be

struck between a summary, “boilerplate” proportionality objec-

tion and an unreasonably detailed and overly burdensome de-

scription of why the requested discovery is disproportionate.

The objecting party should state the grounds for asserting that

the request lacks proportionality based on the applicable pro-

portionality considerations, and why the costs and burdens of

the requested discovery outweigh the likely benefits of the dis-

covery sought, with sufficient specificity to permit the request-

ing party to understand the basis of the objection. See Comment

4.b. The court and the requesting party should recognize that a

highly detailed articulation of the objection and each of the pro-

portionality standard considerations is not necessary to provide

reasonable notice of the assertion of, and the basis for, the objec-

tion.

For a discussion of the limits of preservation efforts, including

those for ESI that is not reasonably accessible, but is reasonably likely

to contain relevant information, see Principle 5. For a discussion of

backup tapes, see Principle 8. For a discussion of cost allocation in

discovery, see Principle 13.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 71

3. As soon as practicable, parties should confer and seek

to reach agreement regarding the preservation and pro-

duction of electronically stored information.

Comment 3.a. Parties should attempt to resolve discov-

ery issues early.

Early discussion of all discovery issues, including the overall

scope of discovery, preservation, and production of ESI, should

reduce misunderstandings, disputes, and the need for court in-

tervention. Doing so is consistent with Rule 1, which states that

the Rules “should be construed, administered, and employed by

the court and the parties to secure the just, speedy, and inexpen-

sive determination of every action and proceeding.” This Prin-

ciple applies to party discovery, as well as requests under Rule

45 to obtain information from non-parties.

Moreover, the Federal Rules (since 2006), most district

courts, and an increasing number of state court rules require

that at the outset of a matter parties consider, discuss, and at-

tempt to agree upon what ESI, if any, will be the subject of dis-

covery, and issues that may attend such discovery.

In particular, Rule 26(f) requires parties to discuss issues

about discovery of ESI and to develop a proposed discovery

plan. The 2006 Advisory Committee Notes to Rule 26(f) observe

that the particular ESI issues to be discussed depend on the cir-

cumstances of the case, and that early identification of issues

about preservation and production of ESI may lead to creative

solutions that avoid unnecessary delay and expense on matters

unrelated to the merits of the litigation. Issues the Advisory

Committee specifically suggested for possible discussion in-

cluded the sources of relevant ESI, preservation issues, whether

any relevant ESI is not reasonably accessible, issues relating to

the assertions of privilege or of protection as trial preparation

materials, and the form or forms in which ESI should be pro-

duced.

72 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Experience with Rule 26(f) since the 2006 amendment has led

counsel to consider an expanded list of topics to discuss during

the meet and confer to develop a discovery plan. Thus, some of

the issues that parties may seek to resolve early in an action in-

clude: (i) the scope of relevance as defined by the claims and

defenses; (ii) the identification of data sources that will be sub-

ject to preservation and discovery; (iii) the relevant time period;

(iv) the identities of particular individuals likely to have rele-

vant ESI; (v) the form or forms of preservation and production

(see Comment 3.c.); (vi) the types of metadata to be preserved

and/or produced; (vii) the identification of any sources of infor-

mation that are not reasonably accessible because of undue bur-

den or cost, such as backup media and legacy data; (viii) the po-

tential use of search technology and other methods of reducing

the volume of ESI to be preserved or produced; (ix) issues re-

lated to assertions of privilege and inadvertent production of

privileged documents (see Comment 3.d. and Principle 10); and

(x) issues related to confidential or privacy information that may

require special treatment or protection during and after produc-

tion.

In 2015, the Federal Rules were further amended to provide

that a request to produce documents may be delivered more

than 21 days after the summons and complaint are served, a

change that was expressly designed to facilitate early discus-

sions even prior to the Rule 26(f) conference, and possibly pro-

duce requests that are more focused and tied to the claims, de-

fenses, and realities of available information. (Delivery does not

count as service, which is considered to occur at the 26(f) con-

ference.)

38. Rule 26(d)(2) and 2015 Advisory Comm. Note.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 73

The 2006 Advisory Committee Note to Rule 26(f) stated that

the parties’ discussion should pay particular attention to achiev-

ing a balance between competing needs to preserve relevant in-

formation and to continue critical routine operations, “with the

goal of agreeing on reasonable preservation steps.” Practice un-

der Rule 26(f) and the 2015 Advisory Committee Notes about

the proportionality amendments (discussed elsewhere; see Prin-

ciple 2 and related commentary above) strongly suggest that a

meaningful meet and confer is not a single event—much less a

simple exchange of emails—but rather an iterative process that

may involve multiple sessions, particularly in a complex case.

For example, the 2015 Advisory Committee Notes point out that

“parties may begin discovery without a full appreciation of the

factors that bear on proportionality”; the requesting party may

have little information about the complexity of the responding

party’s systems, or the burdens and expense imposed by the re-

quest. Conversely, the responding party may have little infor-

mation about the importance of the discovery to the issues in

the case, or inadequate information about where relevant infor-

mation may be located. These uncertainties should be addressed

in the Rule 26(f) context, and remaining disputes brought to the

attention of the court for resolution.

Best practices include agreements in writing to guide the

parties and, as necessary, inform the court.

Illustration i. In the circumstance of an ongoing preser-

vation obligation and in light of the complexity of deci-

sions that must be made regarding the overall preserva-

tion obligation, the parties should discuss maintaining

select data on a live server or other device and agree

upon a process for later review and production. For ex-

ample, parties should discuss whether all drafts and

versions of relevant documents must be preserved in

addition to a final version. Additionally, parties should

74 THE SEDONA CONFERENCE JOURNAL [Vol. 19

discuss how to manage dynamic databases where data

is routinely overwritten.

Illustration ii. Plaintiffs in a lawsuit involving allegations

of securities fraud against multiple defendants seeking

extensive damages request preservation of ESI from all

defendants. The defendants, most of whom are large in-

vestment banks and other financial institutions, respond

that preservation obligations need to be tailored so that

they are defined, manageable, and cost-effective while

also preserving evidence that is truly needed for the res-

olution of the dispute. The parties meet and confer upon

a protocol for preserving existing data, including pre-

serving select (not all) backup tapes, certain archived

data, and select legacy systems; distributing retention

notices (and updates); creating a limited number of mir-

ror images of select computer hard drives; undertaking

measures to collect relevant data; and distributing a

questionnaire regarding electronic data systems. The de-

fendants assess the costs and burdens involved in the

various proposed steps and reach agreement on the

scope and limitations of the obligations. The protocol

averts disputes regarding the scope of preservation and

production, avoids motion practice, and provides assur-

ance as to the expected preservation efforts.

Discovery from Non-parties: An obligation to discuss ESI is-

sues as early as practicable and in good faith also applies to non-

parties from whom information is sought under Rule 45. Parties

considering seeking discovery from non-parties should be

mindful of their duty to take reasonable steps to avoid undue

burden or expense on the person subpoenaed, and the court’s

concomitant duty to impose appropriate sanctions for failure to

2018] THE SEDONA PRINCIPLES,THIRD EDITION 75

do so.

Accordingly, the party seeking non-party discovery

should endeavor to enter discussions as soon as reasonably fea-

sible to address the scope of preservation, to reduce the burden

on non-parties as well as uncertainty, and to prevent wasteful

and expensive over-preservation.

Pre-litigation discussions about ESI issues: Independent of any

requirement imposed by court rule, if litigation involving iden-

tifiable adversaries is reasonably anticipated, practitioners

should consider engaging in early discussions regarding the

preservation of potentially relevant ESI even before litigation is

filed. While doing so is not a requirement, parties may find sig-

nificant value in reaching early agreement delineating the po-

tential scope of preservation, thus reducing the volume and va-

riety of ESI to be preserved. That said, until claims are filed, it

may be difficult to assess the scope of relevant material to be

preserved.

Newer and evolving technologies: In preparing for meaningful

early discussions about data sources that should be subject to

preservation and discovery, counsel should be mindful of the

ever-evolving number and variety of information-generating

technologies and repositories (e.g., instant messaging, text mes-

saging, social media, smartphones, tablets, mobile applications,

and the emerging Internet of Things). The sources of ESI rele-

vant in a particular case will vary depending on the circum-

stances of the case and technologies the parties have used.

Counsel should be cognizant of reasonableness and proportion-

ality considerations, and not indulge in speculative assump-

tions about where relevant information could be found. In this

39. Rule 45(d)(1).

40. See Rule 26(b)(1); The Sedona Conference, Commentary on Legal Holds:

The Trigger & The Process, 11 S

EDONA CONF. J. 265 (2010).

76 THE SEDONA CONFERENCE JOURNAL [Vol. 19

regard, counsel may consider eliminating from preservation

and discovery certain data sources.

Comment 3.b. Cooperation among counsel can enhance

the meet and confer process, reduce unnec-

essary delay and expense associated with

non-merit issues, and foster the overriding

objectives of Rule 1.

In 2008, one year after the publication of the Second Edition

of The Sedona Principles, The Sedona Conference Cooperation

Proclamation was released.

In the Cooperation Proclamation, The

Sedona Conference set forth its position that: (1) “Cooperation

in Discovery is Consistent with Zealous Advocacy,” and (2)

“Cooperative Discovery is Required by the Civil Rules.”

Some practitioners originally questioned whether coopera-

tion was required by the Rules, but, shortly after issuance of the

Cooperation Proclamation, courts and rule-makers began to call

on parties and counsel to address electronic discovery issues in

a cooperative or collaborative manner.

To date, more than 200

judges have endorsed the Cooperation Proclamation, and several

courts have issued guidelines that incorporate cooperation prin-

ciples.

Indeed, some courts have urged that parties coopera-

tively discuss the full range of potential ESI issues, including

41. The Sedona Conference, Cooperation Proclamation, 10 SEDONA CONF.J.

331 (2009 Supp.).

42. See, e.g., Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 363 (D.

Md. 2008) (endorsing The Sedona Conference Cooperation Proclamation and

explaining how cooperation is consistent with the attorney’s obligation to the

courts).

43. See, e.g., Seventh Circuit Electronic Discovery Pilot Program, Principles

Relating to the Discovery of Electronically Stored Information, Principle 1.02 (Rev.

Aug. 1, 2010), available at http://www.discoverypilot.com/sites/de-

fault/files/Principles8_10.pdf; United States District Court for the Northern

District of California, Guidelines for the Discovery of Electronic Information,

2018] THE SEDONA PRINCIPLES,THIRD EDITION 77

metadata that may be relevant and should be preserved and

produced, and the selection and implementation of procedures,

methodologies, and technologies used in fulfilling discovery ob-

ligations.

This position, that parties should address discovery issues

cooperatively, has been given greater force with the December

2015 amendment to Rule 1, which now emphasizes the role of

“the court and parties” to construe, administer, and employ the

Rules “to secure the just, speedy, and inexpensive determina-

tion of every action and proceeding.”

This concept of cooperation, however, does not mean that

attorneys should not be advocates in the discovery process. Ra-

ther, they should advocate their client’s positions within the pa-

rameters of the applicable rules.

If the parties are unable to

reach a full agreement, they may present their remaining dis-

pute to the court for resolution at a scheduling or pretrial con-

ference, or by motion.

In advocating ESI issues and choosing

issues to take to the court, counsel should always attempt to re-

solve potential disputes where feasible, recognizing the risks of

asserting a non-meritorious position—including sanctions un-

der Rule 26(g) and potentially losing credibility with the court.

Guideline 1.02 (Rev. Dec. 1, 2015), available at http://cand.uscourts.gov/fileli-

brary/1117/ESI_Guidelines-12-1-2015.pdf.

44. See also 2015 Advisory Comm. Note to Rule 1 (“[D]iscussions of ways

to improve the administration of civil justice regularly include pleas to dis-

courage over-use, misuse, and abuse of procedural tools that increase cost

and result in delay.”).

45. See 2015 Advisory Comm. Note to Rule 1 (“Effective advocacy is con-

sistent with—and indeed depends upon—cooperative and proportional use

of procedure.”).

46. See The Sedona Conference, The Case for Cooperation, 10 S

EDONA CONF.

J. 339, 346–48 (2009 Supp.).

78 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Finally, cooperation is fundamentally a voluntary endeavor

that requires the development and maintenance of trust be-

tween two or more parties, and a relatively equal and balanced

exchange of non-protected information. If both requesting and

responding parties voluntarily cooperate to evaluate the appro-

priate procedures, methodologies, and technologies to be em-

ployed in a case, both may potentially achieve significant mon-

etary savings and non-monetary efficiencies. Moreover, in some

circumstances a party may effectively immunize itself from the

risk of facing “discovery on discovery” by cooperatively work-

ing to reach agreement on key ESI issues. Conversely, the failure

to engage in meaningful discussions about ESI discovery can

lead to expensive motion practice, which may lead to undesira-

ble court orders.

47. See, e.g., Burnett v. Ford Motor Co., No. 3:13-cv-14207, 2015 WL

4137847, at *8 (S.D.W. Va. July 8, 2015) (discussing the Cooperation Proclama-

tion, stating that “cooperation in a transparent discovery process is the path

to efficient, cost-effective litigation,” and ordering Rule 30(b)(6) deposition

on, among other topics, details regarding the document search defendant

had performed); Ruiz-Bueno v. Scott, No. 2:12-cv-0809, 2013 WL 6055402

(S.D. Ohio Nov. 15, 2013) (ordering answers to interrogatories about search

methods and noting that, where information is shared (which had not hap-

pened in the case), it changes the nature of the dispute from whether the re-

questing party is entitled to find out how the producing party went about

retrieving information to whether that effort was reasonable); Romero v. All-

state Ins., 271 F.R.D. 96, 109–10 (E.D. Pa. 2010) (relying upon The Sedona

Conference, The Case for Cooperation, 10

EDONA CONF. J. 339 (2009 Supp.), and

ordering the parties to confer and come to agreement on future search terms,

custodians, date ranges, and other essentials to a search methodology, but

not requiring disclosure of procedures used during the prior 8 ½ years); cf.

DeGeer v. Gillis, 755 F. Supp. 2d 909 (N.D. Ill. 2010) (failure to cooperate con-

sidered in third-party, cost-shifting context).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 79

Comment 3.c. The early discussions should include proce-

dural issues relating to form of production.

Rule 26(f) calls for an early discussion of form of production

issues. Rule 34 sets forth a more detailed explanation of the

ways in which parties should request and respond to requests

seeking production or inspection of ESI (see Principle 4), and, as

noted above, Rule 26(d)(2) was added in 2015 to permit the de-

livery of early requests to produce, which can then be discussed

in the Rule 26(f) context.

At the outset, requesting parties should have sufficient tech-

nical knowledge of production options so that they can make an

educated and reasonable request. These should be discussed at

the Rule 26(f) conference and included in any Rule 34(a) re-

quests. Likewise, responding parties should be prepared to ad-

dress form of production issues at the Rule 26(f) conference. All

parties should inform themselves as to the forms in which their

own data is stored, and, for complex systems, the export options

available. Additionally, parties should discuss the related issue

of data delivery specifications in relation to the form of produc-

tion, e.g., necessary and appropriate metadata fields, load files,

text extraction, redactions, de-duplication, and exception han-

dling. These discussions can result in an agreed upon protocol

governing the production of ESI and avoid downstream misun-

derstandings or disputes.

With respect to requests and responses, Rule 34(b) provides

that a request may specify the form or forms in which ESI is to

be produced. If objection is made to the requested form or

forms, both parties should discuss and attempt to agree on a

form that is reasonably usable for the requesting party, yet not

unduly burdensome to the producing party. See Principle 12. If

no form was specified in the request, the responding party must

state the form or forms it intends to use.

80 THE SEDONA CONFERENCE JOURNAL [Vol. 19

If a request does not specify the form or forms for producing

ESI, and absent agreement of the parties or court order, a re-

sponding party must produce the information in a form or

forms in which it is ordinarily maintained or in a form or forms

that are reasonably usable. A party need not produce the same

ESI in more than one form. However, parties should account for

the fact that different types or categories of data may be stored

in different forms, thus allowing for the production of different

types of data in different forms. In particular, special considera-

tion should be given to the manner in which relevant structured

data (e.g., databases), information on social media, or infor-

mation stored with cloud service providers or on mobile devices

may be produced.

Significantly, the 2006 Committee Note to Rule 34 makes

clear that the option to produce in a “reasonably usable form”

does not mean that a responding party, once the duty to pre-

serve attaches (see Principle 5), is free to convert ESI from the

form in which it is ordinarily maintained to a different form that

makes it more difficult or burdensome for the requesting party

to use the information efficiently in the litigation. More particu-

larly, a producing party may not remove or significantly de-

grade the electronic searching features of information as it is

usually maintained. Parties will need to carefully consider the

ways in which they preserve and produce documents to ensure

that they will be able to realize Rule 34’s goal of a fair and rea-

sonable approach to the form of production.

For a more detailed discussion of the metadata issue, see Principle

12.

Comment 3.d. The early discussion should include issues

relating to privilege claims and privilege

logs for voluminous ESI.

In litigations or investigations with a large volume of rele-

vant, non-duplicative paper documents and ESI, the volume of

2018] THE SEDONA PRINCIPLES,THIRD EDITION 81

privileged information may be correspondingly large. The ap-

plicable Rule states the following:

When a party withholds information otherwise

discoverable by claiming that information is priv-

ileged or subject to protection as trial preparation

material, the party must:

i. expressly make the claim; and

ii. describe the nature of the documents, commu-

nications, or tangible things not produced or

disclosed—and do so in a manner that, with-

out revealing information itself privileged or

protected, will enable other parties to assess

the claim.

Traditionally, parties have complied with this Rule by pro-

ducing a privilege log with separate entries for each document,

containing objective information about the document (such as

author, addressee, and Bates number) as well as a field that de-

scribes the basis for the privilege claim. Even if there are rela-

tively few privileged documents, preparing and reviewing a

privilege log can be extremely time-consuming. Often, the priv-

ilege log is of marginal utility. The immense volume of ESI now

subject to discovery exacerbates the problem.

One solution that parties may consider is to agree at the out-

set to accept privilege logs that will initially classify categories

or groups of withheld documents, while providing that any ul-

timate adjudication of privilege claims, if challenged, may be

made on the basis of a document-by-document review if review

by category proves insufficient. The basis for this approach is

the 1993 Advisory Committee Note to Rule 26(b), which states

the following:

48. Rule 26(b)(5)(A).

82 THE SEDONA CONFERENCE JOURNAL [Vol. 19

The rule does not attempt to define for each case

what information must be provided when a party

asserts a claim of privilege or work product pro-

tection. Details concerning time, persons, general

subject matter, etc., may be appropriate if only a

few items are withheld, but may be unduly bur-

densome when voluminous documents are

claimed to be privileged or protected, particularly

if the items can be described by categories.

An agreement at the outset of litigation to log privileged doc-

uments by category, and which provides for a full and fair de-

fense of individual privilege claims if challenged, will reduce

motion practice regarding log deficiencies and other procedural

challenges that are becoming more common given the huge vol-

ume of ESI at issue. A categorical log may provide sufficient in-

formation for the requesting party (and perhaps the court or a

third party) to assess the validity of the privilege claims asserted

as to each category of documents.

In addition, the parties may wish to consider stipulating that

certain categories of documents are presumptively privileged

(such as documents prepared, sent, or received by attorneys

who represent a party for specific purposes). Such documents

would be withheld preliminarily subject to requests for further

analysis or review to ensure that the privilege applies and has

not been waived. Further, parties should consider agreeing to

classes of privileged documents that do not need to be pre-

served or listed on a log because there is no expectation that they

would be discoverable. One example of such a category would

49. 1993 Advisory Comm. Note to Rule 26(b); see also FED.R.EVID. 502.

50. See John M. Facciola & Jonathan M. Redgrave, Asserting and Challenging

Privilege Claims in Modern Litigation: The Facciola-Redgrave Framework, 4 F

ED.

TS.L.REV. 19 (2009).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 83

be communications among a trial team after the litigation be-

gins.

Last, and as discussed in greater detail in Principle 10, to re-

duce the burdens associated with potential inadvertent disclo-

sure of privileged materials, the parties should consider asking

the court to enter an order as contemplated by Federal Rule of

Evidence 502(d).

For a more detailed discussion of privilege issues including Fed-

eral Rule of Evidence 502, see Principle 10.

Comment 3.e. Search and retrieval parameters and tech-

niques are appropriate topics for discus-

sion at an early meet and confer session.

It usually is not feasible, and may not even be possible, for

most litigants to collect and review all relevant data from their

computer systems. The extraordinary effort required to do so

could cripple many organizations. Yet, without appropriate

guidelines, if any data is omitted from a production, an organi-

zation may be accused of withholding data that should have

been produced and, if that data is not preserved, of spoliation.

Unnecessary controversy over peripheral discovery issues

often can be avoided if the parties discuss early the scope of rel-

evance, the costs of preserving and collecting relevant data from

various sources, and approaches that may be used to assist in

the search or retrieval of relevant information. Accordingly, and

consistent with the Federal Rules and best practices, parties

should be prepared to discuss the sources of ESI that have been

identified as containing relevant information as well as the steps

that have been taken to search for, retrieve, and produce such

information.

For a more detailed discussion of these issues, see Comment 5.b.,

and Principles 6, 8, and 11.

84 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Comment 3.f. Preservation of facts and data considered

by expert witnesses is a topic appropriate

for discussion at an early meet and confer

session.

The obligation to preserve and produce may apply to some

expert witness materials.

An earlier version of The Sedona Principles suggested that the

duty to preserve and produce might extend to drafts of expert

witness reports, and that the early discussions therefore should

address expert witness issues.

A 2010 rule amendment re-

duced some of those concerns, but the subject of experts is still

appropriate for early discussion.

The 1993 amendments to Rule 26(a)(2)(B) required the dis-

closure of all “information considered by the [expert] in forming

the [expert’s] opinion.” Under this standard, the failure to pre-

serve information could lead to sanctions and the exclusion of

testimony.

In 2010, Rule 26(a)(2) and Rule 26(b)(4) were amended to

eliminate what the Advisory Committee described as repeat-

edly reported undesirable effects, including inquiry into com-

munications between counsel and expert, retention of dual ex-

perts—one consultative and the other to testify, and additional

costs. In particular, Rule 26(a)(2) was amended to provide that

disclosure include all “facts or data considered by the witness in

forming” opinions, the intent being to avoid inquiry into com-

munications between counsel and the expert. At the same time,

the Advisory Committee emphasized that “facts or data”

should be interpreted broadly to include all material of a factual

51. See The Sedona Principles: Best Practices Recommendations & Principles for

Addressing Electronic Document Production, THE SEDONA CONFERENCE, Com-

ment 3.d., at 24 (2d ed. 2007), https://thesedonaconference.org/

publication/The%20Sedona%20Principles.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 85

nature considered by the expert, regardless of its source. A cor-

ollary amendment was made to Rule 26(b)(4) providing work

product protection to draft reports of experts disclosed under

Rule 26(a)(2)(A), the intent being to allow counsel to interact

with experts without fear of exposing those drafts and commu-

nications to searching discovery.

To avoid the potential for dis-

pute, and recognizing that the issue usually will affect both par-

ties, the best course is for the parties to confer about what expert

witness materials need to be preserved and exchanged in ac-

cordance with Rule 26(a)(2)(B). If an agreement cannot be

reached, counsel should propose a sensible solution to the court

early, rather than risk later accusations of evidence spoliation or

failure to produce.

Comment 3.g. Communications with opposing counsel

and the court regarding ESI should be in-

formed and candid.

The efficacy of “meet and confers,” or other types of commu-

nications, depends upon the parties’ candor, diligence, and rea-

sonableness. A party should accurately represent the complexi-

ties and attendant costs and burdens of preservation and

production as well as relevance and need for production. Un-

substantiated or excessive cost estimates will reduce the party’s

credibility, as will vague statements regarding relevance. Fur-

ther, a responding party should be prepared to present oppos-

ing counsel and the court with a reasonable plan for the preser-

vation and production of relevant ESI. In the face of a credible

and specific concern that relevant ESI is not being preserved,

parties who do not present the court with a reasonable plan for

preservation may cause the court to err on the side of protecting

the integrity of the data collection process and require unneces-

sary preservation.

52. See 2010 Advisory Comm. Note to Rule 26(b)(4).

86 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Often, neither counsel nor the court will have sufficient tech-

nical knowledge to understand the systems at issue. In prepar-

ing for court conferences or meet and confer conferences, coun-

sel may need to consult with their clients’ information

technology departments or consultants regarding the technical

issues involved in data preservation. Indeed, because of the con-

tinuing evolution, proliferation, and complexity of information

generating and storage systems, several courts encourage coun-

sel to bring their client’s technical experts to Rule 16(b) and Rule

26(f) conferences, so that erroneous assumptions and under-

standings about ESI functionality, including export options,

costs, and time estimates, can be dealt with intelligently and

early, rather than sidetracking the discovery plan or, worse,

leading to costly motion practice. In turn, as appropriate or as

deemed necessary, organizations should devote sufficient re-

sources to make complex technical issues comprehensible to

their counsel. Similarly, counsel representing individuals

should devote sufficient resources to understand and make

comprehensible any complex technical issues regarding the sys-

tems or applications that contain relevant ESI, e.g., text mes-

sages on mobile devices. When providing affidavits or testi-

mony to opposing counsel or the court on these issues, counsel

should be careful to ensure that the presentations, affidavits, or

testimony are not only accurate but also comprehensible to lay

individuals with less technical knowledge.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 87

4. Discovery requests for electronically stored infor-

mation should be as specific as possible; responses and

objections to discovery should disclose the scope and

limits of the production.

Comment 4.a. Requests for production should clearly

specify what ESI is being sought.

A requesting party that seeks production of ESI should, to

the greatest extent practicable, clearly and specifically indicate

each item or category of electronic information it seeks. Discov-

ery requests should avoid boilerplate definitions, definitions of

common words, or demands for all email, databases, word pro-

cessing files, or whatever other ESI the requesting party can gen-

erally describe. Instead, the request should target particular ESI

that the requesting party contends is relevant to the claims or

defenses and proportionate to the needs of the case.

In many

cases, a requesting party may not know the details of another

party’s systems and applications, but to the extent a requesting

party knows about specific ESI it seeks, it should request that

information. Towards this end, counsel for a requesting party

may find that the client has knowledge of the opposing party’s

information systems, and can help specify target sources of rel-

evant information.

By tailoring requests to identified relevant individuals and

topics, requesting parties can avoid blanket, burdensome re-

quests for ESI that invite blanket objections and judicial inter-

vention. Courts recognize that Rule 26(g) makes the imposition

of an appropriate sanction mandatory if a discovery request is

interposed for an improper purpose.

53. See Mancia v. Mayflower Textile Servs., 253 F.R.D. 354, 364 (D. Md.

2008).

54. See Heller v. City of Dallas, 303 F.R.D. 466 (N.D. Tex. 2014); The Sedona

Conference, Commentary on Achieving Quality in the E-Discovery Process, 15

88 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Rule 26(d)(2) was amended in 2015 to provide that, more

than 21 days after the summons and complaint are served, a re-

quest to produce documents under Rule 34 may be delivered.

See Comment 3a. This is intended to allow a more meaningful

Rule 26(f) conference.

The requesting party should also identify the specific form

or forms in which the ESI should be produced, recognizing that

different types or categories of information may be stored in dif-

ferent forms, thus allowing for the preservation and/or produc-

tion of one set of data in a particular form and a distinct set of

data in a different form. See Principle 12 for considerations in

assessing ESI forms. The requesting party also should specify

technical details, such as particular fields or types of metadata

sought, and be prepared to explain its preferences in a meet and

confer. In federal cases, the subject of form of production must

be discussed at the Rule 26(f) conference, and the parties’ views

and proposals must be included in the parties’ discovery plan

or in an ESI protocol or stipulation.

An early discussion of the

potential form or forms of production (including the types of

metadata to be produced) will facilitate planning for preserva-

tion and identify any disputes that a court may have to resolve.

If agreement is reached, it should be embodied in a Rule 16(b)

scheduling order. If agreement is not reached, the parties’ re-

spective positions can be presented to the court. See Principle 12,

and Comments 3.a. and 4.b.

SEDONA CONF. J. 265 (2013); FED.R.CIV. P. 26(g)(1)(B) (an attorney or unrep-

resented party who signs a discovery request or response thereby “certifies

that to the best of that person’s knowledge, information, and belief formed

after a reasonable inquiry,” the request is not interposed for an improper

purpose and is neither unreasonable nor unduly burdensome); see also Man-

cia, 253 F.R.D. at 360 (Rule 26(g) requires “approaching the process

properly . . . in accordance with the letter and spirit of the discovery rules.”).

55. Rule 26(f)(3)(C).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 89

For non-party discovery, the party issuing the subpoena may

indicate the form or forms in which production is to be made,

and the non-party subject to the subpoena has the same rights

and obligations in regard to form of production as parties.

Sim-

ilar to the duty that Rule 26(g) imposes on parties when they

serve Rule 34 requests for production, the party issuing a sub-

poena “must take reasonable steps to avoid imposing undue

burden or expense” on the subpoenaed party, and the court is

required to enforce this duty and impose an appropriate sanc-

tion on a party or attorney who fails to comply.

For a more detailed discussion of the process and advantages re-

lated to a particular form of production, including a discussion of the

role of metadata, see Principle 12 and its Comments, and Comment

3.d.

Comment 4.b. Responses and objections should clearly

identify the scope and limits of the produc-

tion.

A response to a request to produce ESI must state for each

item or category requested whether the inspection will be per-

mitted as requested. If a responding party has objections to part

or the whole of a request, it must state clearly and specifically

the grounds for each objection, state whether any ESI is being

withheld as to any part or the whole of each request, and permit

inspection of the rest. Specifically, the 2015 amendments to Rule

34(b)(2)(B) added requirements that objections must “state with

specificity the grounds for objecting to the request, including the

reasons.” Rule 34(b)(2)(C) now states that “[a]n objection must

state whether any responsive materials are being withheld on

the basis of that objection.”

If a responding party contends that

56. Rules 45(a)(1)(C) and 45(e)(1)(B)–(C).

57. Rule 45(d)(1).

58. See also 2015 Advisory Comm. Note to Rule 34.

90 THE SEDONA CONFERENCE JOURNAL [Vol. 19

a request is overbroad in part but appropriate in other parts, the

response should comply with the parts that are not overbroad.

The response should also indicate the extent to which produc-

tion of relevant ESI will be limited because of undue burden or

cost of production efforts, or restricted. But, “[t]he producing

party does not need to provide a detailed description or log of

all documents withheld, but does need to alert other parties to

the fact that documents have been withheld and thereby facili-

tate an informed discussion of the objection.”

If the responding party objects to the form or forms of ESI

production requested, it should state the form or forms it pro-

poses for production, and be prepared to discuss at a meet and

confer session. As one example, in the case of a proprietary da-

tabase, it may not be necessary to produce in native format, as

the requesting party may not have the software necessary to use

or review the information; in such instances, a discussion at a

meet and confer of extraction and production options (including

relevant metadata fields) would be appropriate. The 2006 Advi-

sory Committee Note to Rule 34(b) warns that a responding

party that

responds to a discovery request by simply pro-

ducing electronically stored information in a form

of its choice, without identifying that form in ad-

vance of the production in the response required

by Rule 34(b), runs a risk that the requesting party

can show that the produced form is not reasonably

usable and that it is entitled to production of some

or all of the information in an additional form.

That Note also makes it clear that, where the responding

party objects to the form specified in a discovery request or the

requesting party is not satisfied with the form of production

59. 2015 Advisory Comm. Note to Rule 34.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 91

specified in the discovery response, the parties “must meet and

confer . . . before the responding party can file a motion to com-

pel.” See Principle 12 regarding appropriate forms of produc-

tion.

As with requests, courts recognize that Rule 26(g) makes the

imposition of an appropriate sanction mandatory if a discovery

response or objection is interposed for an improper purpose. In

the Mancia case, discussed in Comment 4.a., the court also in-

structed that the responding party would bear the burden of

demonstrating “a particularized factual basis to support any

claim of excessive burden or expense,” and also noted that the

process of negotiating requests for production should be en-

gaged in cooperatively by counsel, which did not mean a party

needed to abandon a meritorious position.

It is neither reasonable nor feasible for a party to search or

produce information from every electronic source that might

contain information relevant to every issue in the litigation, nor

is a party required to do so. In many cases, by applying the con-

cept that discovery should be proportionate to the needs of the

case, it may be reasonable to limit initial searches to sources such

as email messages and other information from the accounts of

key witnesses in the litigation, for the same reasons that it has

been regarded as reasonable to limit searches for paper docu-

ments to the files of key individuals. Likewise, it should be ap-

propriate, absent unusual circumstances, to limit review for pro-

duction to those sources most likely to contain non-duplicative

relevant information (such as active files used by key employ-

ees). See Principle 8. Responding parties are best situated to

evaluate the appropriate procedures, methodologies, and tech-

nologies for reviewing their own ESI. See Principle 6.

60. Mancia v. Mayflower Textile Servs., 253 F.R.D. 354, 364–65 (D. Md.

2008).

92 THE SEDONA CONFERENCE JOURNAL [Vol. 19

In cases governed by the Federal Rules, a producing party

that does not intend to produce relevant ESI from sources iden-

tified as not reasonably accessible because of undue burden or

cost must identify those sources to the requesting party.

Ab-

sent local rule or a court order, this Rule does not require the

specificity of a traditional privilege log, nor does it require the

listing of electronic information systems or storage devices that

have not been identified as a source of non-duplicative, relevant

information. If the parties do not reach agreement during a meet

and confer process on whether ESI is not reasonably accessible,

the requesting party may move to compel;

the responding

party then must establish the burdens associated with produc-

ing the ESI; and the court for good cause may order the produc-

tion, subject to proportionality principles and the possibility of

cost allocation.

61. See FED.R.CIV. P. 26(b)(2)(B) and 34(b)(2)(C).

62. The 2006 Advisory Committee Note to Rule 26(b)(2)(B) instructs that

the parties must meet and confer before bringing a motion.

. See The Sedona Conference, Cooperation Proclamation: Resources for the

Judiciary, THE SEDONA CONFERENCE, Sect. IV.8.1.1, at 33 (Dec. 2014 Public

Comment Version), https://thesedonaconference.org/publication/The%20Se-

dona%20Conference%C2%AE%20Cooperation%20Proclamation%3A%20

Resources%20for%20the%20Judiciary.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 93

5. The obligation to preserve electronically stored infor-

mation requires reasonable and good faith efforts to re-

tain information that is expected to be relevant to

claims or defenses in reasonably anticipated or pend-

ing litigation. However, it is unreasonable to expect

parties to take every conceivable step or disproportion-

ate steps to preserve each instance of relevant electron-

ically stored information.

Comment 5.a. The preservation analysis includes two as-

pects: When the duty arises, and the scope

of ESI that should be preserved.

The common law duty to preserve evidence clearly extends

to ESI. Indeed, the vast majority of information upon which

businesses and individuals operate today is generated electron-

ically, and much of this information is never printed to paper.

Therefore, parties must take reasonable steps to preserve ESI

when litigation or government investigation is pending or rea-

sonably anticipated.

The preservation obligation necessarily involves two related

questions: (1) when does the duty to preserve attach, and (2)

what information, including relevant ESI, must be preserved.

The first inquiry remains unchanged from prior practice—

the duty arises when litigation is commenced or earlier, when

there is a reasonable anticipation of litigation or an investiga-

tion, e.g., where there is a credible threat of litigation.

Parties

64. See generally The Sedona Conference, Commentary on Legal Holds: The

Trigger & The Process, 11 S

EDONA CONF. J. 265 (2010).

65. See id. at 271 (“[T]here are circumstances when the threat of litigation

is not credible, and it would be unreasonable to anticipate litigation based on

that threat.”); see also 18 U.S.C. § 1519 (destruction, alteration, or falsification

of records with the intent to obstruct a federal investigation of any matter, or

94 THE SEDONA CONFERENCE JOURNAL [Vol. 19

should exercise good faith in evaluating the facts and circum-

stances known to them, and a party who is considering bringing

a claim should realize that the duty may be triggered earlier for

it than for the opposing party.

The need to recognize when the duty to preserve has been

triggered may be more important with respect to those elec-

tronic information systems that quickly delete or overwrite data

in the ordinary course of operations.

The second inquiry presents a much greater challenge with

respect to ESI than with paper documents. The obligation to pre-

serve relevant evidence is generally understood to require that

the producing party make reasonable and good faith efforts to

identify and preserve the information that is identified as rele-

vant to the claims or defenses in the matter. Consistent with the

generally applicable principles of proportionality, a party need

only preserve unique instances of such relevant ESI. That is, a

party need not preserve multiple or duplicative copies of the

same relevant ESI.

Satisfying this obligation must be balanced against the right

of an organization to continue to manage its ESI in the organi-

zation’s best interest, even though some ESI is necessarily over-

written on a routine basis by various computer systems. If such

overwriting is incidental to the operation of the systems—as op-

posed to a deliberate attempt to destroy evidence in anticipation

of or in connection with an investigation or litigation—it should

generally be permitted to continue after the commencement of

litigation, unless the overwriting destroys discoverable ESI that

is not available from other accessible sources.

in relation to the contemplation of any such matter, shall be fined, impris-

oned not more than 20 years, or both).

66. See, e.g., Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311 (Fed. Cir.

2011); Hynix Semiconductor Inc. v. Rambus Inc., 645 F.3d 1336 (Fed. Cir.

2011).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 95

Just as organizations need not preserve every shred of paper,

they also need not preserve every email or electronic document.

To require such broad preservation would cripple organizations

that almost always are involved in litigation, and make discov-

ery even more costly and time-consuming. A reasonable balance

must be struck between (1) an organization’s duty to preserve

relevant and discoverable evidence, and (2) an organization’s

need, in good faith, to continue operations.

Earlier editions of The Sedona Principles stated “it is unrea-

sonable to expect parties to take every conceivable step to pre-

serve all potentially relevant ESI.” That statement was intended

in part to address some early cases that put in question whether

parties were obligated to preserve and produce information on

backup tapes. In recent years, business continuation and disas-

ter recovery technologies have advanced, and some organiza-

tions address these important needs with dual, mirrored live

systems on which information may be readily available, thereby

reducing concerns about backup tapes. The change in this edi-

tion is intended to emphasize two things: As before, at most,

unique instances of relevant information should be preserved—

not each and every duplicative instance—and, as the 2015

amendments to the Federal Rules emphasize, all discovery must

be proportional to the needs of the case. Accordingly, principles

of proportionality should be applied when the costs and bur-

dens of preserving large amounts of ESI may be disproportion-

ate to the needs of the case, and even the sole copy of an ESI item

67. See 2015 Advisory Comm. Note to Rule 37(e) (“As under the current

rule, the routine, good-faith operation of an electronic information system

would be a relevant factor for the court to consider in evaluating whether a

party failed to take reasonable steps to preserve lost information . . . .”); see

also The Sedona Conference, Commentary on Legal Holds: The Trigger & The

Process, Guideline 7, 11 S

EDONA CONF. J. 265 (2010).

96 THE SEDONA CONFERENCE JOURNAL [Vol. 19

need not be preserved if doing so would be disproportionate to

the needs of the case.

Illustration i. L Corporation (“L Corp.”) routinely backs

up its email system to tape every day and recycles the

backup tapes after two weeks. L Corp. receives a discov-

ery request relating to a product liability claim against L

Corp. arising out of the design of products sold one year

ago. L Corp. promptly and appropriately notifies all em-

ployees involved in the design, manufacture, and sale of

the product to save all ESI relating to the issues in the

litigation, and the legal department takes reasonable

steps to ensure that all relevant ESI in fact has been pre-

served. L Corp. continues its policy of recycling backup

tapes while the litigation is pending. Absent awareness

of a reasonable likelihood that specific unique and rele-

vant ESI is contained only on a backup tape, there is no

violation of preservation obligations because the corpo-

ration has an appropriate policy in place and the backup

tapes are reasonably considered to be redundant of the

data saved by other means.

Preservation obligations may expand, or contract, as the con-

tours of claims and defenses are clarified during the pendency

of a matter.

If the scope of the claims or defenses expands, par-

ties may need to increase their preservation efforts, which may

require them to amend their preservation notices. Conversely,

when the scope of claims or defenses contracts, the party pre-

serving the information will have an interest in modifying its

preservation efforts and notices so that it may resume normal

information management procedures for information that is no

longer relevant to the claims or defenses. It may choose to do so

68. See, e.g., Boeynaems v. LA Fitness Int’l, LLC, 285 F.R.D. 331 (E.D. Pa.

2012).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 97

unilaterally, but doing so may carry some risk, as several courts

have faulted parties that make unilateral electronic discovery

decisions. A safer course of action is for the parties to engage in

a meaningful discussion consistent with the cooperation princi-

ples (discussed under Principle 3), recognize the competing

needs to preserve relevant information and to continue routine

operations for managing information that is not needed for liti-

gation or investigation,

and agree how the preservation efforts

and notices may be scaled back.

Preservation by non-party in response to Rule 45 subpoena: Case

law concerning the preservation obligations of a subpoenaed

non-party in litigation is not well defined. Some courts have

noted that the issuance of a subpoena creates a duty to pre-

serve.

However, since Rule 45 imposes duties on the request-

ing party and the court to shield a non-party from undue bur-

den and expense,

there may be some question whether an

overbroad subpoena creates a duty to preserve. A good practice

for a requesting party that receives an objection to the breadth

of a subpoena is to engage the non-party in good faith discus-

sions about the scope of the subpoena, sources of potentially re-

sponsive ESI, and the costs of preserving and producing rele-

vant ESI. See Principle 3.

Preservation of social media and other newer ESI sources: Preser-

vation of social media and other newer ESI sources may present

technical challenges and raise evidentiary issues. For example,

social media data is often hosted remotely with third parties, is

69. See 2006 Advisory Comm. Note to Rule 26.

70. See Rule 1 and 2015 Advisory Comm. Note.

71. See, e.g., The Sedona Conference, Commentary on Non-Party Production

& Rule 45 Subpoenas, 9 S

EDONA CONF. J. 197, 199 (2008) (referencing In re Nap-

ster, Inc. Copyright Litig., 462 F. Supp. 2d 1060 (N.D. Cal. 2006)).

72. Rule 45(d)(1).

98 THE SEDONA CONFERENCE JOURNAL [Vol. 19

dynamic and collaborative by nature, may include several dif-

ferent data types, and is often accessed through unique inter-

faces. Due to these characteristics and because some social me-

dia may be subject to the restrictions of the Stored

Communications Act,

traditional preservation and collection

protocols may be a poor fit. Moreover, social media sites and

other mobile applications can shut down, terminate an account,

and delete content. Similarly, mobile devices can present special

preservation challenges. For these reasons, to the extent that

these ESI sources are relevant to the claims and defenses in an

action, parties should address and seek to reach agreement early

in the case about preservation and collection of social media and

other newer ESI sources.

For a discussion of the duty to preserve ESI on sources identified

as not reasonably accessible because of undue burden or cost, see The

Sedona Conference Commentary on Preservation, Management and

Identification of Sources of Information that are Not Reasonably Ac-

cessible.

Comment 5.b. Organizations must prepare for electronic

discovery if they are to reduce cost and

risk.

While the main purpose of computer systems is to assist the

organization in its business activities, the need to respond to dis-

covery in litigation is a fact of life for many organizations.

73. See 18 U.S.C. §§ 2701–2712 (1986). For example, an individual may par-

ticipate in a group social media account, but not “own it,” and therefore may

not be in a position to tell the cloud service provider to save it, even though

it may be relevant to claims and defenses.

74. See The Sedona Conference, Primer on Social Media, 14 S

EDONA CONF.J.

191, 226 (2013).

75. 10 S

EDONA CONF. J. 281 (2009).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 99

Preparing in advance for electronic discovery demands can

greatly ease the burdens and risk of inaccuracy inherent in ef-

forts to prepare for initial disclosures and meet and confer ses-

sions once litigation begins. Depending on the size, sophistica-

tion, and litigation profile, as discussed in Comment 1.b, an

effective information governance (IG) program can substan-

tially enhance an organization’s ability to address electronic dis-

covery issues.

For example, an organization with a modestly

mature IG program will be better prepared to identify sources

of potentially relevant information, because it likely will have

developed indices of its core information generating systems

and applications, including key metadata fields, system stew-

ards, output options, and metrics for preserving and producing

that can aid the meet and confer discussion. The organization

may also know what information is subject to regulatory or con-

tractual obligations and constraints, and how it is stored, as well

as information that is subject to confidentiality or privacy de-

mands and security requirements. The organization may also

have an inventory of existing legal holds and know whether in-

formation relevant to the claims and defenses in a new matter is

already being preserved for another. There is no obligation for

an organization to adopt an IG program, however compelling

the arguments in favor may be, and the absence of such a pro-

gram should not be considered in determining whether an or-

ganization has met its preservation obligations.

In addition, the accessibility of information and the costs of

responding to requests for discovery of information contained

in computer systems can best be controlled if the organization

takes steps to prepare and educate personnel of pertinent disci-

76. See The Sedona Conference, Commentary on Information Governance, 15

EDONA CONF. J. 125, 140–42 (2014).

100 THE SEDONA CONFERENCE JOURNAL [Vol. 19

plines including legal and IT staff, records management person-

nel, managers, and users of information systems about the po-

tential demands of litigation. This is not to suggest that every

organization should invest in litigation support technologies,

although some may choose to do so; however, organizations

with an extensive litigation docket and sufficient financial

means may wish to consider a mix of personnel, processes, and

technology that may be appropriate to manage projected litiga-

tion and discovery needs.

Such steps include instituting defined policies and proce-

dures for issuing and monitoring legal hold notices where ap-

propriate, preserving and producing information relevant to the

claims and defenses, and establishing processes to preserve, col-

lect, review, and produce information that may be relevant or

required for initial mandatory disclosures. To the extent such

policies and procedures are adopted, organizations should pro-

vide training regarding them.

Illustration i. Med Corporation manufactures pharma-

ceutical products. Med has established a three-week ro-

tation for system backups. One of Med’s products, LIT,

is observed to cause serious adverse reactions in a num-

ber of patients, and the FDA orders it withdrawn from

the market. Anticipating the potential for claims relating

to LIT, Med’s legal department collects all potentially

relevant information from employees. The litigation re-

sponse system helps Med identify and quickly move to

preserve all potentially relevant data, including email,

user files, corporate and clinical trial databases, shared

network areas, public folders, and other repositories.

Med also puts in place processes to capture newly cre-

ated potentially relevant data. The process results in rel-

2018] THE SEDONA PRINCIPLES,THIRD EDITION 101

evant data being collected on a special litigation data-

base server that is independent of normal system opera-

tions and backups.

Eight months later, a class action is filed against Med for

LIT injuries. Plaintiff’s counsel obtains an ex parte order

requiring Med to save all of its backup tapes, to refrain

from using any auto-deletion functions on email and

other data pending discovery, and to refrain from refor-

matting hard drives of—or reassigning hard drives

from—employees involved in any way with LIT. Med’s

Information Systems department estimates that comply-

ing with the order will cost at least $150,000 per month,

including the cost of new tapes, reconfiguration of

backup procedures and tape storage, purchase and in-

stallation of additional hard drive space for accumulat-

ing email and file data, and special processing of hard

drives when computers are upgraded or employees

leave the company or are transferred.

Med promptly moves for relief from the order, demon-

strating through its documented data collection process

that the relevant data has been preserved, and that the

requested modifications of its systems are unnecessary

due to the preservation efforts already in place. The

court withdraws its order and Med is able to defend the

litigation without impact on normal operations of its

computer systems or excessive electronic discovery

costs.

Comment 5.c. In assessing the scope of a preservation

duty, as soon as practicable, parties should

consider persons likely to have relevant

102 THE SEDONA CONFERENCE JOURNAL [Vol. 19

ESI, as well as non-custodial sources of

relevant ESI.

Parties should define the scope of their preservation obliga-

tions as soon as practicable after the duty to preserve arises. The

duties of preservation apply equally to plaintiffs as to defend-

ants in litigation.

For organizations, identifying and preserving relevant ESI

will normally require input from legal staff who understand the

claims and defenses in the case, from employees involved in the

transaction or event that caused the lawsuit, and from infor-

mation technology or records management personnel with a

good understanding of where and how the organization stores

relevant ESI. Failure to initiate reasonable preservation proto-

cols as soon as practicable may increase the risk of arguments

that relevant information was not preserved.

The duty to comply with a preservation obligation is an af-

firmative duty. The scope of what is necessary will vary widely

between and even within organizations depending upon the na-

ture of the claims and defenses, and the information at issue.

The law requires reasonable and good faith steps to preserve

once the duty is triggered, not perfection.

77. See, e.g., Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311 (Fed. Cir.

2011); Hynix Semiconductor Inc. v. Rambus Inc., 645 F.3d 1336 (Fed. Cir.

2011).

78. See Federal Housing Finance Agency v. HSBC North America Hold-

ings Inc., No. 11 Civ., 2014 WL 584300, at *2 (S.D.N.Y. Feb. 14, 2014) (“Parties

in litigation are required to be diligent and to act in good faith in producing

documents in discovery. The production of documents in litigation such as

this is a herculean undertaking, requiring an army of personnel and the pro-

duction of an extraordinary volume of documents. Clients pay counsel vast

sums of money in the course of this undertaking, both to produce documents

and to review documents received from others. Despite the commitment of

these resources, no one could or should expect perfection from this process.

All that can be legitimately expected is a good faith, diligent commitment to

2018] THE SEDONA PRINCIPLES,THIRD EDITION 103

Based on the information available to the organization about

the credible threat of litigation or investigation, the organization

should assess the persons likely to have relevant information,

and the sources of non-custodial relevant information (such as

structured systems and databases, and other non-custodial

sources such as collaboration tools, social media, and those ref-

erenced in Comment 5.i.). In making the preservation decisions,

organizations should carefully consider likely future discovery

demands for relevant ESI to avoid needless repetitive steps to

capture data again in the future.

Organizations should consider documenting the key deci-

sions made in the preservation process, and the reasons for any

exceptions to an organization’s standard protocols for preserva-

tion.

Necessarily, initial decisions may have to be made on the ba-

sis of imperfect knowledge about the claims and defenses. For

that reason, so long as the preservation decisions are made on

the basis of reasonable belief and good faith, a party should not

be faulted with the benefit of hindsight if claims are modified or

expanded, requiring an adjustment of the preservation obliga-

tions.

Comment 5.d. Parties should, in most circumstances,

send notices to preserve relevant infor-

mation to persons having relevant ESI or

produce all responsive documents uncovered when following the protocols

to which the parties have agreed, or which a court has ordered.”); Pension

Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp.

2d 456, 461 (S.D.N.Y. 2010) (“Courts cannot and do not expect that any party

can meet a standard of perfection” regarding electronic discovery.).

79. See The Sedona Conference, Commentary on Legal Holds: The Trigger &

The Process, 11 S

EDONA CONF. J. 265, 280–82 (2010); The Sedona Conference,

Database Principles Addressing the Preservation and Production of Databases and

Database Information in Civil Litigation, 15 S

EDONA CONF. J. 171 (2014).

104 THE SEDONA CONFERENCE JOURNAL [Vol. 19

responsible for maintaining systems con-

taining relevant ESI.

Once a preservation obligation is triggered, as discussed in

Comment 5.a., a party should take reasonable steps to com-

municate to appropriate persons the need to preserve infor-

mation that is relevant to the claims and defenses and propor-

tional to the needs of the case.

Usually this communication will take the form of a “legal

hold notice.” The legal hold notice should be sent to persons re-

sponsible for preserving information relevant to claims or de-

fenses in that litigation or investigation. This usually includes

persons with knowledge of the underlying facts of the matter,

since they are likely to generate, receive, and maintain relevant

information. The list also may include the persons responsible

for maintaining and operating relevant computer systems, files,

or databases, including application teams or administrators, as

well as those who can assist with certain steps such as suspend-

ing auto-deletion policies for certain custodians, backup, or ar-

chiving systems that may fall within the scope of the preserva-

tion obligation.

The legal hold notice does not need to reach all employees;

however, it should be reasonable and reach those individuals

likely to maintain information relevant to the claims or defenses

in the litigation or to the investigation and which will be needed

in discovery.

In some circumstances sending a legal hold notice will not

be necessary, e.g., where all potentially relevant information is

already secured. In other, rare circumstances, sending a legal

hold notice may be inadvisable, e.g., where a notice might tip a

80. See Rule 26(b)(1); The Sedona Conference, Commentary on Legal Holds:

The Trigger & The Process, 11 S

EDONA CONF. J. 265, 271–74 (2010).

81. See id. at 279–80.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 105

potential target and cause him to delete the only instances of

relevant information.

While the form and content of the notice may vary widely

depending upon the circumstances, the notice need not provide

a detailed list of all information to retain. Instead, it should de-

scribe the types of information that must be preserved, with

enough detail to allow the recipient to implement the hold. The

notice should state that ESI, as well as paper, is subject to preser-

vation.

In circumstances where issuing a legal hold notice is appro-

priate, such a notice is most effective when the organization fo-

cuses on identifying and notifying key custodians and data

stewards most likely to have relevant ESI

that the ESI must be

preserved, and when the notice:

a) communicates in a manner that assists persons in taking

actions that are, in good faith, intended to be effective;

b) is in an appropriate form, which may be written, and

may be sent by email;

c) provides information on how preservation is to be un-

dertaken, and/or identifies individual(s) who can an-

swer questions about preservation;

d) includes a mechanism for the recipient to acknowledge

that the notice had been received, read, and understood;

e) addresses features of relevant information systems that

may make preservation of potentially discoverable in-

formation more complex (e.g., auto delete functionality

that should be suspended, or small sections of elaborate

accounting or operational databases);

82. See id. at 283–84.

83. See id. at 282–83 (Guideline 8).

84. See id. at 270, 277.

106 THE SEDONA CONFERENCE JOURNAL [Vol. 19

f) is periodically reviewed and amended when necessary;

and

g) is followed up by periodic reminder notices, so the legal

hold stays fresh in the minds of the recipients.

The notice need not demand preservation of all ESI, only the

ESI that falls within the preservation obligation. When a notice

to preserve is overbroad, it may cause added information man-

agement costs and lead to confusion later on, but an overbroad

notice should not be treated by courts or opposing counsel as

expanding the scope of the preservation obligation; it is the

claims and defenses that define the scope of the preservation ob-

ligation, not the notice that may be issued.

Illustration i. In response to a product liability claim, al-

leging that injuries resulted due to a design defect in a

safety mechanism part of the new product, a company

issues a hold instructing those responsible for the de-

sign and production of the new product to preserve all

information about it. Even if the hold is broader than

necessary to the claims concerning the safety mecha-

nism, it would be inappropriate to fault the organization

later for failing to preserve all information about all as-

pects of the new product, its design, and production.

Additionally, the preservation obligation, except in extreme

circumstances, should not require the complete suspension of

normal document management policies, including the routine

destruction and deletion of records. Rather, normal document

management policies may continue with respect to non-relevant

information.

85. See Blue Sky Travel & Tours v. Al Tayyar, 606 Fed. App’x. 689 (4th Cir.

2015).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 107

Communications should be accomplished in a manner rea-

sonably designed to provide prominent notice to the recipients.

Depending on the scope and duration of the litigation, it may be

advisable to send reminders on some regular basis (e.g., quar-

terly), and it may be necessary to amend the hold if the claims

and defenses change. Defensibility also can be increased if the

legal team meets with the recipients of the legal hold to confirm

that the proper individuals are subject to the hold, and to make

sure that those individuals understand and can comply with the

preservation obligations. When preservation obligations apply

to documents and ESI spanning a significant or continuing time

period, organizations should analyze whether special steps are

needed to preserve unique, relevant ESI stored on outdated or

retired systems.

Illustration ii. Pursuant to its procedures for litigation re-

sponse, upon receipt of notice of the claim, the organiza-

tion identifies the departments and employees involved

in the dispute. Those individuals who are reasonably

likely to control or manage relevant ESI are notified via

email of the dispute and are asked to take steps to pre-

serve that ESI, as described in the notice. The notice

identifies a contact person in legal who can address

questions regarding preservation duties. The notice is

also distributed to information technology and records

management liaisons, who work with legal counsel to

identify other relevant ESI, if any. The organization has

taken reasonable steps to implement the legal hold.

Parties should also consider whether some preservation no-

tice should be sent to third parties, such as contractors or ven-

dors, including those that provide information technology ser-

vices. This concern arises out of Rule 34, which frames a party’s

obligation in terms of its possession, custody, or control of doc-

108 THE SEDONA CONFERENCE JOURNAL [Vol. 19

uments. For example, many lawsuits involve work done by con-

tractors that are hired by the organization, and that maintain

relevant ESI outside the organization’s IT systems. Depending

on the jurisdiction, the organization’s preservation obligations

may extend to that ESI that is outside the organization’s posses-

sion. In recent years, the trend to store electronic information

with offsite cloud service providers has resulted in court deci-

sions holding that a party contracting with a cloud service pro-

vider still has control over its data stored in the cloud. In most

of these arrangements, the organization can preserve relevant

ESI just as if the ESI was still on its own servers. But if the ar-

rangement requires some assistance from the cloud service pro-

vider to preserve ESI, the organization should establish in the

original contracting documents or service level agreement clear

lines of communication and procedures for instituting a timely

legal hold over information relevant to claims and defenses.

The fact that some cloud service providers have their own tools

for preserving ESI does not mean that organizations should

abandon their own tried and tested preservation methods in fa-

vor of the method marketed by the cloud service provider.

Comment 5.e. Preservation efforts need not be heroic or

unduly burdensome.

The preservation obligation for ESI does not impose heroic

or unduly burdensome requirements on parties. Rather, the ob-

ligation to preserve normally requires reasonable and good faith

efforts. As discussed in Comment 3.a., the identification of data

sources that may be subject to preservation and production

should be discussed among the parties early in the case. If the

parties are unable to agree on the scope of preservation, they

86. See generally The Sedona Conference, Commentary on Rule 34 and Rule

45 “Possession, Custody, or Control,” 17 S

EDONA CONF. J. 467 (2016).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 109

should raise the issue with the court at the Rule 16(b) confer-

ence. See also Comment 4.b.

An obligation to undertake extraordinary efforts should be

imposed only when a court, after consideration of proportional-

ity principles, determines that there is a substantial likelihood

that the ESI exists; that it is directly relevant to a claim or defense

and would not remain in existence absent intervention; that the

ESI (or its substantial equivalent) cannot be found in another,

more accessible data source; and that its preservation is likely to

materially advance the resolution of the litigation in a just, effi-

cient, and relatively inexpensive manner.

Illustration i. A requesting party seeks an order, over ob-

jection, that backup tapes created during a relevant pe-

riod should be preserved and restored, and information

from them produced. It develops sufficient proof to

raise the likelihood that substantial amounts of deleted

information directly relevant to the claims in the action

existed in the time frame covered by the backup tapes.

Before ruling on the merits of the request, the court

should consider having the producing party restore and

search a sample of the tapes to determine the likelihood

that relevant and discoverable ESI, not otherwise availa-

ble, can be recovered and that doing so is proportional

to the needs of the case. If recovery of information from

the backup tapes is ordered, the court should consider

whether further use of sampling techniques would min-

imize the burdens on the producing party, and whether

any of the costs of the recovery should be allocated

among the parties.

87. See Rule 1; Comment 5.f.

110 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Comment 5.f. Ex parte preservation orders are disfavored

absent showing of necessity and, when is-

sued, should be tailored to require only

preservation of ESI relevant to the claims

and defenses.

In general, courts should not issue a preservation order over

objection unless the party requesting such an order demon-

strates its necessity, which may require an evidentiary hearing

in some circumstances. Because all litigants are obligated to pre-

serve relevant information in their possession, custody, or con-

trol, a party seeking a preservation order must first demonstrate

a real danger of evidence destruction, the lack of any other avail-

able remedy, and that a preservation order is an appropriate ex-

ercise of the court’s discretion and is tailored to require only

preservation of information relevant to the claims and defenses.

Such orders violate the principle that responding parties are re-

sponsible for preserving and producing their own ESI. See Prin-

ciple 6. More generally, preservation orders should rarely be is-

sued over objection, and only after a full and fair opportunity to

present evidence and argument. This is particularly important

when dealing with ESI that may be transitory, not reasonably

accessible, or not susceptible to reasonable preservation

measures. The 2006 Advisory Committee Note to Rule 26(f) in-

structs that “the requirement that the parties discuss preserva-

tion does not imply that courts should routinely enter preserva-

tion orders. A preservation order entered over objections should

be narrowly tailored. Ex parte preservation orders should issue

only in exceptional circumstances.”

Usually, neither the party seeking a preservation order nor

the court will have a thorough understanding of the other

party’s computer systems, the ESI that is available, or the mech-

anisms in place to preserve that ESI. For example, in the early

years of electronic discovery, courts sometimes believed that

2018] THE SEDONA PRINCIPLES,THIRD EDITION 111

backup tapes were inexpensive and that preservation of tapes

was not burdensome. However, restoration from backup tapes

could be expensive; in recent years, backup systems and tech-

nologies vary greatly, and have evolved significantly. In addi-

tion, unnecessary retention of backup tapes can undermine an

organization’s IG programs by creating a cache of unknown

data that complicates the organization’s discovery obligations

in later cases. Without information about the specifics of the

backup system in use, it is difficult to determine what steps are

reasonable and proportional to meet the needs of the case.

That said, jointly stipulated preservation orders may aid the

discovery process and reduce costs by defining the specific con-

tours of the parties’ preservation obligations—i.e., both infor-

mation sources that are to be preserved, and information

sources that need not be preserved. Before any preservation or-

der is issued, the parties should meet and confer to discuss the

scope and parameters of the preservation obligation. Whether

agreed to or ordered over objection, preservation orders should

be narrowly tailored to require preservation of ESI that is non-

duplicative, proportional, and relevant to the claims or defenses

in the case, without unduly interfering with the normal func-

tioning of the affected party’s operations and activities, includ-

ing the operation of electronic information systems.

Comment 5.g. All ESI does not need to be “frozen.”

A party’s preservation obligation does not require “freez-

ing” of all ESI, including all email. Parties need not preserve

“every shred of paper, every e-mail or electronic document, and

every backup tape,”

nor do they have to go to extraordinary

measures to preserve “all” potentially relevant ESI. See Com-

ment 5.e.

88. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003).

112 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Civil litigation should not be approached as if information

systems were crime scenes that justify forensic investigation at

every opportunity to identify and preserve every detail. Theo-

retically, a party could preserve the contents of wastebaskets

and trash bins for evidence of statements or conduct. Yet, the

burdens and costs of those acts are apparent and no one would

argue that this is required. There should be a similar application

of reasonableness to preservation of ESI.

Even though it may technically be possible to capture vast

amounts of ESI during preservation efforts, usually this can be

done only at great cost. ESI is maintained in a wide variety of

formats, locations, and structures. Many copies of the same ESI

may exist in active storage, backup, or archives. Computer sys-

tems manage data dynamically, meaning that the ESI is con-

stantly being cached, rewritten, moved, and copied. For exam-

ple, a word processing program usually will save a backup copy

of an open document into a temporary file every few minutes,

overwriting the previous backup copy. In this context, imposing

an absolute requirement to preserve all ESI would require shut-

ting down computer systems and making copies of data on each

fixed disk drive, as well as other media that normally are used

by the system. Costs of litigation would routinely approach or

exceed the amount in controversy. In the ordinary course, there-

fore, the preservation obligation should be limited to those steps

reasonably necessary to secure ESI for the fair and just resolu-

tion of the matter in dispute.

Comment 5.h. Absent good cause, preservation obliga-

tions should not extend to disaster recov-

ery storage systems.

Several early cases addressing electronic discovery issues in-

volved whether or not parties were obligated to produce ESI on

backup tapes, and if so, which side should bear the cost. In re-

2018] THE SEDONA PRINCIPLES,THIRD EDITION 113

cent years, business continuation and disaster recovery technol-

ogies have advanced. Today, some organizations address these

important needs with dual, mirrored live systems on which ESI

may be readily available. The Comments that follow address

those situations where backup tapes still are used, but many of

the concepts apply to other disaster recovery technologies as

well.

Absent good cause, preservation obligations should not ex-

tend to disaster recovery backup tapes created in the ordinary

course of business. In many organizations backup tapes exist so

that ESI that is lost due to system failures or through disasters

such as fires or tornadoes can be restored. Thus, by definition,

their contents are duplicative of the contents of active computer

systems at a specific point in time, and employing proper

preservation procedures with respect to the active system

should render preservation of backup tapes on a going-forward

basis redundant and unnecessary. Moreover, when utilized

pursuant to a backup policy, backup tapes generally are not re-

tained for substantial periods of time, but periodically rotated

and overwritten every 15 or 30 days. For that reason, requiring

that information on backup tapes be preserved would require

the time-consuming and costly process of altering backup sys-

tems, exchanging backup tapes, purchasing new tapes or hard-

ware, and storing the tapes removed from the normal rotation.

In some organizations, however, the concepts of backup and

archive are not clearly separated; in such an organization,

backup tapes may be retained for a relatively long-time period,

and files on them may be accessed routinely for retrieval.

Backup tapes also may be retained for long periods out of con-

cern for compliance with record retention laws. While such

114 THE SEDONA CONFERENCE JOURNAL [Vol. 19

practices are not considered a best practice,

under these cir-

cumstances, the stored backup tapes may be deemed “reasona-

bly accessible,” or may contain the only remaining copy of rele-

vant ESI. In such circumstances, whether the ESI on the backups

is subject to discovery should be determined by the usual pro-

portionality principles. Parties that use backup tapes for ar-

chival or preservation purposes should be aware that these

practices may lead to substantially higher costs for evidence

preservation and production in connection with litigation. Par-

ties seeking to preserve ESI for organizational purposes or liti-

gation should consider employing means other than traditional

disaster recovery backup tapes.

Illustration i. Pursuant to an information technology

management plan, once each day a party routinely cop-

ies all ESI on its systems and retains, for a short period

of time, the resulting backup tape for the purpose of re-

construction in the event of an accidental erasure, disas-

ter, or system malfunction. A requesting party seeks an

order requiring the responding party to preserve, and to

cease reuse of, all existing backup tapes pending discov-

ery in the case. Complying would impose significant ex-

penses and burdens on the responding party, which are

documented in factual submissions. No credible evi-

dence is shown establishing the likelihood that, absent

the requested order, the responding party will not pro-

duce all relevant ESI during discovery. The responding

party should be permitted to continue the routine recy-

cling of backup tapes in light of the expense, burden,

89. See The Sedona Guidelines: Best Practice Guidelines & Commentary for

Managing Information & Records in the Electronic Age, T

HE SEDONA

CONFERENCE, 20–22 (2d ed. 2007), https://thesedonaconference.org/publica-

tion/Managing%20Information%20%2526%20Records.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 115

and potential complexity of restoration and search of

the backup tapes.

Finally, if it is unclear whether there is a reasonable likeli-

hood that non-duplicative, relevant ESI is contained on backup

tapes, as part of the proportionality analysis, the parties and/or

the court may consider the use of sampling to better understand

the nature and relevance of the ESI at issue. Depending on the

circumstances of the case, sampling may establish that there is

very little, if any, unique, relevant information on the tapes, and

that there is no need for the tapes to be preserved or restored.

Similarly, sampling may establish that it is reasonable to pre-

serve and restore only certain intervals of available tapes to sat-

isfy the party’s good faith compliance with its preservation and

production obligations.

Illustration ii. A requesting party seeks an order, over

objection, that backup tapes created during a relevant

period should be preserved and restored. It develops

sufficient proof to raise the likelihood that substantial

amounts of deleted but relevant ESI existed in the time

frame covered by the backup tapes. Before ruling on the

merits of the request, the court should consider having

the responding party restore and search a sample of the

tapes to determine the likelihood that relevant and dis-

coverable ESI, not otherwise available, can be recovered

and that it is worthwhile to do so. If recovery of ESI

from the backup tapes is ordered, the court should con-

sider whether further use of sampling techniques would

minimize the burdens on the responding party, and

whether any of the costs of the recovery should be allo-

cated among the parties.

According to the Report of the Civil Rules Advisory Com-

mittee presenting the 2006 amendments to the Federal Rules,

116 THE SEDONA CONFERENCE JOURNAL [Vol. 19

disaster recovery tapes, which are “intended for disaster recov-

ery purposes that are often not indexed, organized, or suscepti-

ble to electronic searching,” are identified as sources that may

not reasonably be accessible and therefore are not subject to in-

itial production absent a court order.

However, a party will

need to disclose backup tapes that it determines are not reason-

ably accessible if it has a reasonable, good faith belief that rele-

vant, non-duplicative data reside on those tapes; and, therefore,

absent proportionality considerations, the Rule assumes the

preservation of such backup tapes.

Comment 5.i. Preservation efforts should include consid-

eration of ESI that is not specific to indi-

vidual custodians, including shared or or-

phaned data.

An organization’s networks or intranet may contain shared

areas (such as public folders, discussion databases, and shared

network folders) that are not regarded as belonging to any spe-

cific employee. Similarly, there may be no one “owner” of the

ESI for collaborative workspace areas within the organization.

Such areas should be considered in the preservation analysis to

determine if they contain relevant ESI proportional to the needs

of the case and, if so, reasonable steps should be taken to pre-

serve the relevant ESI. See Comment 5.d.

90. See SUMMARY OF THE REPORT OF THE JUDICIAL CONFERENCE,COMMITTEE

ON RULES OF PRACTICE AND PROCEDURE, app. C-42 (Sept. 2005), available at

http://www.uscourts.gov/rules-policies/archives/committee-reports/re-

ports-judicial-conference-september-2005.

91. See generally The Sedona Conference, Commentary on Inactive Infor-

mation Sources, THE SEDONA CONFERENCE (July 2009 Public Comment Ver-

sion), https://thesedonaconference.org/publication/The%20Sedona%20Con-

ference%C2%AE%20Commentary%20on%20Inactive%20Information%20So

urces.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 117

If an organization maintains archival data on tapes or other

offline media not accessible to end users of computer systems,

steps should be taken promptly to determine whether those ar-

chival media are reasonably likely to contain relevant ESI not

also present as active data on the organization’s systems. These

steps may include notifying persons responsible for managing

archival systems to retain tapes or other media as appropriate.

118 THE SEDONA CONFERENCE JOURNAL [Vol. 19

6. Responding parties are best situated to evaluate the

procedures, methodologies, and technologies appropri-

ate for preserving and producing their own electroni-

cally stored information.

Introduction

Principle 6 recognizes that a responding party is best situ-

ated to preserve, search, and produce its own ESI. Principle 6 is

grounded in reason, common sense, procedural rules, and com-

mon law, and is premised on each party fulfilling its discovery

obligations without direction from the court or opposing coun-

sel, and eschewing “discovery on discovery,” unless a specific

deficiency is shown in a party’s production.

Comment 6.a. A responding party should determine how

to meet its own preservation and produc-

tion obligations.

There are least four bases for this Principle.

First, the case law and the procedural court rules provide

that discovery should take place without court intervention,

with each party fulfilling its discovery obligations without di-

rection from the court or opposing counsel.

These obligations

92. See Rule 26(a) (mandatory initial disclosures), Rule 34(b)(2) (parties di-

rected to respond to requests for documents or ESI), Rule 33(b)(1)(A) (parties

directed to respond to interrogatories), and Rule 36(a)(3) (parties directed to

respond to requests for admissions); Dynamo Holdings Ltd. P’ship v.

Comm’r, No. 2685-11, 2014 WL 4636526, at *3 (U.S. Tax Ct. Sept. 17, 2014)

(“And although it is a proper role of the Court to supervise the discovery

process and intervene when it is abused by the parties, the Court is not nor-

mally in the business of dictating to parties the process that they should use

when responding to discovery.”); Diepenhorst v. City of Battle Creek, No.

1:05-CV-734, 2006 WL 1851243, at *3 (W.D. Mich. June 30, 2006) (The “discov-

ery process is designed to be extrajudicial, and relies upon the responding

party to search his records to produce the requested data.”); see also Hon.

James C. Francis IV, Judicial Modesty: The Case for Jurist Restraint in the New

2018] THE SEDONA PRINCIPLES,THIRD EDITION 119

include the duty of the party who has possession, custody, or

control

of ESI that is relevant to the claims and defenses in the

case to take reasonable steps to preserve ESI that is within the

scope of discovery. See Principle 5. Those discovery obligations

also include the duty to use reasonable efforts to locate and pro-

duce ESI responsive to the opposing party’s requests and within

the scope of discovery. To enforce these responsibilities, the at-

torney’s signature on a discovery response “certifies that the

lawyer has made a reasonable effort to assure that the client has

provided all the information . . . responsive to the discovery de-

mand” and has made “reasonable inquiry into the factual basis

of his response.”

To meet its preservation and production obligations, the re-

sponding party must make a myriad of determinations neces-

sary to identify, preserve, collect, process, analyze, review, and

produce relevant and discoverable ESI for each case. The lack of

uniformity and varying degrees of complexity in organizations

and their information systems often require a very specific, in-

depth understanding of how that party handles its own infor-

mation. Additionally, determining what is relevant and propor-

tional under the circumstances for each matter often requires a

highly fact-specific inquiry.

Thus, the responding party—not

the court or requesting party—is both tasked with making those

Electronic Age, LAW TECH.NEWS (Feb. 2013) (No Federal Rule “has given

judges the authority . . . to dictate to the parties how or where to search for

documents.”).

93. See The Sedona Conference, Commentary on Rule 34 and 45 “Possession,

Custody, Or Control,” 17 S

EDONA CONF. J. 467 (2016).

94. 1983 Advisory Comm. Note to Rule 26(g); see id. (“If primary respon-

sibility for conducting discovery is to continue to rest with the litigants, they

must be obliged to act responsibly and avoid abuse.”).

95. See, e.g., Chin v. Port Auth., 685 F.3d 135, 162 (2d Cir. 2012).

120 THE SEDONA CONFERENCE JOURNAL [Vol. 19

determinations and generally in a better position to make those

decisions.

Because of the dynamic nature of litigation, the analysis can-

not be reduced to a generalized checklist of reasonable steps for

every party to take in every action.

Instead, the responding

party must make decisions on what is required to meet its

preservation and production obligations based on direct input

from those inside the organization who create, receive, and store

their own information (i.e., individual custodians), and those

who implement and maintain the organization’s information

systems (e.g., applications administrators). Rarely will a court

or opposing party have direct access to the specific knowledge

required to make those decisions. Moreover, some of these de-

cisions, especially those relating to preservation, often must be

made before a responding party can confer with the opposing

party or seek court guidance. Thus, a responding party, not the

court or requesting party, is generally best situated to determine

and implement appropriate procedures, methodologies, and

technologies.

Second, courts have affirmed that a responding party is best

situated to determine which procedures, methodologies, and

technologies are appropriate for preserving and producing its

own ESI, often specifically citing this Principle with approval.

This has become even more clear in the years since the original

publication of The Sedona Principles.

96. Id.

97. See, e.g., Hyles v. New York City, 10 Civ. 3119, 2016 WL 4077114

(S.D.N.Y. Aug. 1, 2016); Rio Tinto PLC v. Vale S.A., 2015 WL 872294 (S.D.N.Y.

Mar. 2, 2015); Dynamo Holdings Ltd. P’Ship v. Comm’r, No. 2685-11, 2014

WL 4636526 (Tax Ct. Sept. 17, 2014) (“[T]he Court is not normally in the busi-

ness of dictating to parties the process that they should use when responding

to discovery.”); Kleen Prods, LLC v. Packaging Corp. of Am., No. 10 C 5711,

2012 WL 4498465, at *5 (N.D. Ill. Sept. 28, 2012) (observing that under Sedona

2018] THE SEDONA PRINCIPLES,THIRD EDITION 121

Third, deference regarding the selection and implementa-

tion of the discovery process should be given to the party that

will incur the costs. In the vast majority of cases, each party

bears the costs associated with preservation and production of

its own ESI, and the risks (including potential curative measures

or sanctions) for failing to comply with those obligations. See

Principle 13 regarding costs, and Principle 14 regarding reme-

dial measures and sanctions. As one court stated: “I am a be-

liever of principle 6 of Sedona, and I’m not just because it’s Se-

dona, but I think the people who are producing the records,

producing the documents, are in a better position to know, since

they have to do the work, spend the money, spend the time, they

know their people, they know their material . . . .”

There are

many options available to a responding party in evaluating and

selecting how best to meet its preservation and discovery obli-

gations, and it should be permitted to elect how best to allocate

Principle 6 “[r]esponding parties are best situated to evaluate the procedures,

methodologies, and techniques appropriate for preserving and producing

their own electronically stored information”); Ford Motor Co. v. Edgewood

Props., Inc., 257 F.R.D. 418, 427 (D.N.J. 2009) (“The Sedona Principles wisely

state that it is, in fact, the producing party who is [in] the best position to

determine the method by which they will collect documents. . . . [A]bsent an

agreement or timely objection, the choice is clearly within the producing

party’s sound discretion.”) (citing The Sedona Conference, Best Practices

Commentary on the Use of Search and Information Retrieval Methods in E-Discov-

ery,

EDONA CONF. J. 189, 204 (2007)); Little Hocking Water Assn., Inc. v. E.I.

DuPont de Nemours & Co., No. 2:09-cv-1081, 2013 WL 608154, at *9 (S.D.

Ohio Feb. 19, 2013) (responding party “is in the best position to identify . . .

potentially responsive information”); Cache La Poudre Feeds, LLC v. Land

O’Lakes, Inc., 244 F.R.D. 614, 628 (D. Colo. 2007) (“[I]in the typical case,

‘[r]esponding parties are best situated to evaluate the procedures, methodol-

ogies, and technologies appropriate for preserving and producing their own

electronic data and documents.’”).

98. Kleen Prods. LLC et al v. International Paper et al, Civ. No. 1:10-cv-

05711, Doc. 319, Ex. A, at 6667–68 (N.D. Ill. May 17, 2012) (Tr. of Proceedings

before the Hon. Nan Nolan).

122 THE SEDONA CONFERENCE JOURNAL [Vol. 19

its resources and incur the costs required to comply with its ob-

ligations.

Fourth, the explosive proliferation of ESI, and regulations for

some specific types of ESI, have led many organizations to de-

velop information governance (IG) programs that often include

customized, proprietary structured-data, document manage-

ment, and archiving systems.

Those systems and applications

are often expansive, include extremely complex and dynamic

structured-data systems, and are focused on the mission of run-

ning the day-to-day business.

100

Additionally, larger organiza-

tions and frequent litigants, regardless of size, are developing or

expanding their IG programs to include litigation readiness

planning to minimize the impact on the business while still per-

mitting the organization to meet its preservation and discovery

obligations. Because litigation readiness often focuses on an en-

tire portfolio of litigation, demands to use specific procedures,

methodologies, or technologies for preserving and producing

ESI in individual cases may impose an unreasonable burden on

the organization’s IG program that outweighs any resulting

benefit for those cases. In short, those organizations have better

knowledge of, access to, and control of the information at issue

in a particular litigation, as well as the potential impact to their

information systems and governance.

99. See Comment 1.b.; see also The Sedona Conference, Commentary on In-

formation Governance, 15 S

EDONA CONF. J. 125 (2014).

100. See The Sedona Conference, Database Principles Addressing the Preserva-

tion and Production of Databases and Database Information in Civil Litigation, 15

EDONA CONF. J. 171 (2014).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 123

Comment 6.b. Responding parties should be permitted to

fulfill their preservation and discovery ob-

ligations without preemptive restraint.

There are many ways to manage ESI, and many ways in

which the responding party may comply with its discovery ob-

ligations. Because the responding party generally is best situ-

ated to evaluate, select, and implement the procedures, method-

ologies, and technologies appropriate to meet its preservation

and discovery obligations, there should be no preemptive re-

straint

101

placed on a responding party that chooses to proceed

on its own with determining how best to fulfill its preservation

and discovery obligations. Thus, as a general matter, neither a

requesting party nor the court should prescribe or detail the

steps that a responding party must take to meet its discovery

obligations, and there should be no discovery on discovery, ab-

sent an agreement between the parties, or specific, tangible, ev-

idence-based indicia (versus general allegations of deficiencies

or mere “speculation”) of a material failure by the responding

party to meet its obligations.

102

A requesting party has the bur-

den of proving a specific discovery deficiency in the responding

101. This is analogous to the First Amendment precept of no “prior re-

straint,” i.e., just as speech cannot normally be restrained in advance, a re-

questing party should not normally be able to restrain the responding party’s

discovery process to prevent an anticipated, but uncertain, future harm.

102. See, e.g., In re Ford Motor Co., 345 F.3d 1315, 1317 (11th Cir. 2003) (va-

cating order for discovery of certain databases where no finding of “some

non-compliance with discovery rules by Ford”); Koninklijke Philips N.V. v.

Hunt Control Sys., Inc., No. 11-cv-03684, 2014 WL 1494517, at *4 (D.N.J. Apr.

16, 2014) (moving party failed to show a “material deficiency” in the re-

sponding party’s electronic discovery process); Freedman v. Weatherford

Int’l, No. 12 Civ. 2121, 2014 WL 4547039 (S.D.N.Y. Sept. 12, 2014) (request for

“discovery on discovery” denied for failure in absence of factual basis to find

original production deficient); Larsen v. Coldwell Banker Real Estate Corp.,

No. SACV 10-00401, 2012 WL 359466, at *7 (C.D. Cal. Feb. 2, 2012) (denying

124 THE SEDONA CONFERENCE JOURNAL [Vol. 19

party’s production. See Principle 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 infor-

mation were inadequate.”). See also discussion infra regarding po-

tential benefits of cooperation.

Just as a requesting party does not have a right to dictate the

processes, methodologies, or technologies to be used by a re-

sponding party in fulfilling its preservation or discovery obliga-

tions under the Federal Rules or these Principles, the corollary

is that a responding party has no right to demand a requesting

party actively assist the responding party with evaluating and

selecting the procedures, methodologies, and technologies for

meeting the responding party’s preservation and production

obligations. For example, a responding party cannot unilaterally

demand the requesting party submit proposed search terms and

a list of custodians against which to run the search terms, or use

the requesting party’s reluctance to provide search terms as a

shield to defend its own inadequate search terms. Conversely, a

requesting party that refuses to participate in good faith discus-

discovery on discovery where plaintiff’s “isolated examples cited” of alleged

deficiencies “fail[ed] to demonstrate that Defendants have not reasonably

and in good faith produced the documents required”); Orillaneda v. French

Culinary Inst., No. 07 Civ. 3206, 2011 WL 4375365, at *7–8 (S.D.N.Y. Sept. 19,

2011) (plaintiff not entitled to conduct discovery about defendant’s docu-

ment production without “specific statements” to prove deficiency instead

of relying on “generalities”); Steuben Foods, Inc. v. Country Gourmet Foods,

LLC, No. 08-CV-561S, 2011 WL 1549450 (W.D.N.Y. 2011); Hubbard v. Potter,

247 F.R.D. 27, 31 (D.D.C. 2008) (denying discovery on discovery because of

only a “theoretical possibility” that additional electronic documents may ex-

ist); Memory Corp. v. Kent. Oil Tech., No. C04-03843, 2007 WL 832937 (N.D.

Cal. Mar. 19, 2007); In re Honeywell Int’l. Inc. Sec. Litig., 230 F.R.D. 293

(S.D.N.Y. 2003).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 125

sions with a responding party may weaken its ability to chal-

lenge the processes, methodologies, or technologies selected by

the responding party.

Rule 1 requires parties to employ the Rules “to secure the

just, speedy, and inexpensive determination of every action and

proceeding.” Additionally, requesting and responding parties

share the mutual obligation to meet and confer in good faith to

discuss the preservation and production of ESI, as required by

Rule 26 and its state equivalents.

103

In addition to what is required by those Rules, it is generally

in the best interests of the responding party to engage in mean-

ingful cooperation with opposing parties to attempt to reduce

the costs and risk associated with the preservation and produc-

tion of ESI. If both requesting and responding parties voluntar-

ily elect to cooperatively evaluate and agree upon the appropri-

ate procedures, methodologies, and technologies to be

employed in the case, both may potentially achieve significant

monetary savings and non-monetary efficiencies.

104

See also

Principle 3.

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

103. Rule 26(f)(3)(C) requires the parties to confer on and prepare a discov-

ery plan that addresses “any issues about disclosure, discovery, or preserva-

tion of electronically stored information, including the form or forms in

which it should be produced.” See also Principle 12. While the 2015 Advisory

Committee Note to Rule 1 encourages “cooperative and proportional use of

procedure,” it also specifically states that “[t]his amendment does not create

a new or independent source of sanctions.”

104. See The Sedona Conference, Cooperation Proclamation, 10 S

EDONA CONF.

J. 331 (2009 Supp.).

126 THE SEDONA CONFERENCE JOURNAL [Vol. 19

preserving and producing relevant ESI within the scope of dis-

covery from the responding party’s systems.

105

In those situa-

tions, if the requesting party is engaging in meaningful cooper-

ation by providing specific information on such issues, the

responding party should consider the information the request-

ing party provides in evaluating the preservation steps and pro-

duction that is proportional and relevant.

If the parties reach agreement on preservation and produc-

tion after thorough dialogue about the ESI likely to be propor-

tional and relevant, the responding party has greatly reduced or

even eliminated the risk of satellite motion practice or sanctions.

But, short of actual agreement, the responding party bears the

ultimate responsibility for the adequacy of meeting its preserva-

tion obligations. A responding party’s obligations under Rule

26(f) to meet and confer in good faith does not trump its right to

evaluate unilaterally and select the procedures, methodologies,

and technologies appropriate for preserving and producing its

own ESI. Those rights should be challenged only where a re-

questing party demonstrates to the court a specific deficiency in

the responding party’s discovery productions.

Comment 6.c. Documentation and validation of discov-

ery processes.

Responding parties and their counsel should consider what

documentation of their discovery process (i.e., preservation, col-

lection, review, and production) is appropriate to the needs of

the particular case. Such documentation may include a descrip-

tion of what is being preserved; the processes and validation

105. For example, a former employee may be highly knowledgeable about

the organization’s information systems or an employer may have a greater

understanding of the technology behind an individual plaintiff’s social me-

dia accounts.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 127

procedures employed to preserve, collect, and prepare the ma-

terials for production; and the steps taken to ensure the integrity

of the information throughout the process. Since The Sedona

Principles was first published, applications have been developed

to automate the legal hold issuance, tracking, and documenta-

tion processes, as well as some collections. Having documenta-

tion can help respond to legitimate challenges (see Comment

6.b.)—even those made years later—to the processes employed,

avoid overlooking ESI that should be collected, and avoid col-

lecting ESI that is neither relevant nor responsive to the matter

at issue. Organizations should endeavor to revise their stand-

ardized documentation and validation procedures as appropri-

ate, e.g., when the organization introduces new technologies to

store or create ESI, including some technologies that create new

types of ESI.

Parties may voluntarily agree to produce or exchange docu-

mentation of their discovery processes, but should do so only

after due consideration of privilege and work product issues (see

Principle 10). Absent such a voluntary agreement, however,

parties should not be required to produce documentation of

their discovery processes unless there has been a showing of a

specific deficiency in their discovery processes (see Comment

6.b.), and, even then, the production requirement is subject to

the normal protections afforded by the attorney-client privilege

or the work product doctrine.

Comment 6.d. Rule 34 inspections of electronic infor-

mation systems are disfavored.

Courts have repeatedly found that Rule 34 does not create a

routine right of direct access to an opposing party’s electronic

128 THE SEDONA CONFERENCE JOURNAL [Vol. 19

information system.

106

Inspection of an opposing party’s com-

puter system under Rule 34 and state equivalents is the excep-

tion and not the rule for discovery of ESI. In the majority of

cases, the issues in litigation relate to the informational content

of the data stored on computer systems, not the actual opera-

tions of the systems; and, as noted above, the obligation to pro-

duce relevant content lies with the responding party. Unless the

requesting party can prove that the actual operation of a partic-

ular system is at issue in the litigation, if the responding party

provides the informational content of the data, there is no need

or justification for direct inspection of the responding party’s

computer systems.

Direct access to an opposing party’s computer systems un-

der a Rule 34 inspection also presents possible concerns such as:

a) revealing trade secrets;

b) revealing other highly confidential or private infor-

mation, such as personnel evaluations and payroll infor-

mation, properly private to individual employees;

c) revealing confidential attorney-client or work-product

communications;

d) unreasonably disrupting the ongoing business;

e) endangering the stability of operating systems, software

applications, and electronic files if certain procedures or

software are used inappropriately; and

106. See, e.g., SEC v. Strauss, No. 09 Civ. 4150, 2009 WL 3459204, at *12 n.8

(S.D.N.Y. Oct. 28, 2009) (“There is a general reluctance to allow a party to

access its adversary’s own database directly. The Advisory Committee Notes

to the 2006 amendments to Rule 34 explain that Rule 34(a) is not meant to

‘create a routine right of direct access to a party’s electronic information sys-

tem’ and advises that courts ‘guard against undue intrusiveness resulting

from inspecting or testing such systems.’ Thus, courts have declined to find

an automatic entitlement to access an adversary’s database.” (citing cases)

(emphasis in original)).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 129

f) placing a responding party’s computing systems at risk

of a data security breach.

Further, Rule 34 inspections of ESI are likely to be particu-

larly ineffective. The typical production, in which the respond-

ing party identifies and produces responsive information, al-

lows the party with the greatest knowledge of the computer

systems to search and utilize the systems to produce responsive

information. A Rule 34 inspection, in contrast, requires persons

unfamiliar with the party’s recordkeeping systems, hardware,

and software to attempt to manipulate the systems. Not only is

such a process disruptive, it is less likely to be fruitful. In most

cases, responding parties will be able to argue persuasively that

its production of relevant ESI from computer systems and data-

bases was sufficient to discharge its discovery obligations.

To justify the onsite inspection of a responding party’s com-

puter systems, a requesting party must demonstrate that there

is a substantial need to discover information about the computer

system and programs used (as opposed to the data stored on

that system) and that there is no reasonable alternative to an on-

site inspection. Any inspection procedure should: (1) be docu-

mented in an agreed-upon (and/or court-ordered) protocol; (2)

recognize the rights of non-parties, such as employees, patients,

and other entities; and (3) be narrowly restricted to protect con-

fidential and personally identifiable information and system in-

tegrity as well as to avoid giving the discovering party access to

information unrelated to the litigation. Further, courts that have

allowed access generally have required that the inspection be

performed by a qualified consultant or vendor, and that no in-

formation obtained through the inspection be produced until

the responding party has had a fair opportunity to review that

information.

130 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Comment 6.e. Use and role of discovery counsel, consult-

ants, and vendors.

Responding parties may consider retaining specialized dis-

covery counsel, consultants, and/or vendors to assist in preserv-

ing and producing ESI. Due to the complexity of electronic dis-

covery, many organizations rely on discovery counsel,

consultants, and vendors to provide a variety of services, in-

cluding discovery planning, data collection, specialized data

processing, and forensic analysis. The use of specialized discov-

ery counsel has increased significantly in recent years, and such

specialized counsel and non-attorney consultants can be of great

assistance to parties and courts in providing technical expertise

and experience with the preservation, collection, review, and

production of ESI. Parties should carefully consider the experi-

ence and expertise of potential consultants or vendors before

their selection, as standards for non-attorney experts and con-

sultants in this field still have not been fully developed. Discov-

ery counsel, consultants, and vendors offer a variety of software

and services to assist with the electronic discovery process; and

a party’s evaluation of software and services should include the

defensibility of the process in the litigation context, the cost, and

the experience of the discovery counsel, consultant, or vendor,

including its project management and process controls, as ap-

plicable. Ultimate responsibility for ensuring the preservation,

collection, processing, review, and production of ESI rests with

the responding party and its counsel, not with any non-party

consultant or vendor.

107

107. See ABA MODEL RULES OF PROF’L CONDUCT R. 5.1 and R. 5.3; Cal. St.

Bar Standing Comm. On Prof’l Resp. & Cond., Formal Op. No. 2015-193, at

5–6 (June 30, 2015), available at http://ethics.calbar.ca.gov/Portals/9/docu-

ments/Opinions/CAL%202015-193%20%5B11-0004%5D%20(06-30-15)%20-

%20FINAL.pdf; Comment 10.k.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 131

7. The requesting party has the burden on a motion to

compel to show that the responding party’s steps to pre-

serve and produce relevant electronically stored infor-

mation were inadequate.

Comment 7.a. Process and burden of proof for resolving

discovery disputes between parties.

A party that receives a request for production of ESI may ob-

ject to some or all of the request, or may produce information

that the requesting party deems inadequate or non-responsive.

This may prompt the requesting party to consider filing a mo-

tion to compel production. In cases governed by the Federal

Rules of Civil Procedure, such a motion would be filed under

Rule 37(a), which requires the moving party to certify that good

faith efforts have been made to resolve the dispute before resort-

ing to the court.

108

On a motion to compel, the moving party must demonstrate

that the discovery response was inadequate and that additional

steps are warranted. On such a motion, a court should consider:

Sedona Principle 2 and the proportionality limits of Rule

26(b)(1); how the moving party can meet its burden without the

need for extensive discovery about the responding party’s ef-

forts to respond to the discovery request; and that, consistent

with Principle 6, the responding party is in the best position to

determine the appropriate methods for preserving, retrieving,

reviewing, and producing ESI.

Further, Rule 26(b)(2)(B) establishes a procedure to resolve

disputes regarding discovery from sources the responding

party has identified as “not reasonably accessible” because of

“undue burden or cost.” See Comment 2.c. So, too, Rule 26(c)

108. Rule 37(a)(1).

132 THE SEDONA CONFERENCE JOURNAL [Vol. 19

establishes a procedure for obtaining a protective order to re-

lieve a responding party from “undue burden or expense,” or,

as amended in 2015, to allocate costs. Under either Rule, the bur-

den is on the responding party to establish the grounds for lim-

iting discovery.

Comment 7.b. Process for discovering ESI from non-par-

ties.

ESI also may be secured from non-parties by service of a sub-

poena or other process authorized by the relevant court proce-

dures. Requesting parties must be sensitive to the burdens that

such discovery places on non-parties. A party issuing the sub-

poena may indicate the form or forms in which production is to

be made, and the non-party subject to the subpoena generally

has the same rights and obligations in regard to production as

parties. One major exception is that there is no requirement to

meet and discuss preservation or other key topics. Parties issu-

ing and responding to subpoenas can avail themselves of such

an opportunity informally, a best practice that should be fol-

lowed in most cases. See Comment 3.a.

Rule 45(d)(1) provides that the issuing party must “take rea-

sonable steps to avoid imposing undue burden or expense on a

person subject to the subpoena,” and requires the court to pro-

tect persons from undue burden and expense associated with

subpoena compliance.

109

Excessively broad ESI production re-

quests on non-parties can also lead to sanctions and liability un-

der federal statutes protecting the privacy of electronic commu-

nications.

110

109. 1991 Advisory Comm. Note to Rule 45.

110. See Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2003) (service of an

overbroad, “patently unlawful” subpoena on a party’s ISP, which led to the

disclosure of private and privileged communications, violated the Stored

2018] THE SEDONA PRINCIPLES,THIRD EDITION 133

Equally important, Rule 45(d)(2)(B)(ii) provides that, if ob-

jection is made to a subpoena, an order to compel production

“must protect a person who is neither a party nor a party’s of-

ficer from significant expense resulting from compliance.”

Courts balance the cost, burden, and need for discovery from

non-parties when considering whether to quash or modify the

discovery sought, or to shift some or all of the costs associated

with requests for production of ESI.

111

For cost-shifting stand-

ards on non-party subpoenas, see Comment 13.c.

Communications Act, 18 U.S.C. § 2701 et seq., and the Computer Fraud and

Abuse Act, 18 U.S.C. § 1030).

111. See Braxton v. Farmer’s Ins. Group, 209 F.R.D. 651, 653 (N.D. Ala. 2002)

(court quashed non-party subpoena for documents and ESI from insurance

agents where the requesting party could not show that production by the

insurance company that employed the agents would be inadequate).

134 THE SEDONA CONFERENCE JOURNAL [Vol. 19

8. The primary sources of electronically stored infor-

mation 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.

Comment 8.a. Scope of search for and preservation of

readily accessible data.

The scope of the sources a responding party must search for

relevant ESI to be preserved and ultimately produced need only

be reasonable and proportional. Depending on the case and the

parties involved, relevant ESI may be on a wide variety of

sources, such as local and network computers, laptop and desk-

top computers, servers, mobile devices, portable storage de-

vices, database systems, document management systems, busi-

ness intelligence platforms, network attached storage, cloud-

based storage and information sharing systems and services, ar-

chives, backup systems, voicemail systems, video monitoring

systems, etc. In considering where to search for and preserve

relevant ESI, The Sedona Principles first and second editions fo-

cused on the delineation of “active” data sources as opposed to

disaster recovery backup tapes and other sources of ESI that

were not reasonably accessible. However, the continually evolv-

ing landscape of information technology has made this distinc-

tion less important.

This revised Principle addresses a new framework, consid-

ering potential sources of discoverable information as existing

along a continuum: starting with ESI that is readily accessible

(that is, easily and quickly available and used in the ordinary

course); then continuing through a variety of sources that are

less accessible because of increasing burden or cost, or that are

2018] THE SEDONA PRINCIPLES,THIRD EDITION 135

largely duplicative of more accessible sources; and ending with

sources that clearly are not readily accessible and for which the

cost of preservation and production is not proportional to the

matter at hand.

112

The 2015 amendments to Rule 26 elevate proportionality

analysis, requiring parties to apply proportionality when con-

sidering data sources other than primary sources. The primary

sources of information for the responding party should be those

that are routinely accessed in the ordinary course through ordi-

nary means. Once those primary sources are exhausted, the re-

sponding party arrives at a “phase gate” or “decision gate,”

where it must consider whether additional, unique, and discov-

erable ESI exists within less readily accessible sources and, if so,

whether the preservation and potential production of that infor-

mation through extraordinary means is consistent with the pro-

portionality requirement of Rule 26(b)(1).

113

The responding

party then continues through a series of phase gates until such

time as it concludes that it has reasonably met its obligations

with respect to preservation or production, or that further ef-

forts are not proportional to the matter.

114

In considering the preservation and production of ESI (in-

cluding all necessary steps in between) along the continuum, it

is neither feasible nor reasonable to require litigants to canvas

all potential sources of ESI in discharging their preservation ob-

ligations and responding to discovery requests. Many locations

or sources will contain duplicative or redundant information,

112. The “readily accessible” continuum is intended to comprehend both

the increased emphasis on proportionality under amended Rule 26(b)(1) and

the deeper analyses of data sources that are claimed to be not reasonably ac-

cessible under Rule 26(b)(2)(B).

113. See also Principle 2; The Sedona Conference, Commentary on Proportion-

ality in Electronic Discovery, 18

EDONA CONF. J. 141 (2017).

114. See id.; Rules 26(b)(2)(B) and 26(c).

136 THE SEDONA CONFERENCE JOURNAL [Vol. 19

and others may contain ephemeral data or massive and dispro-

portionate volumes of information clearly not relevant to the

claims and defenses in the case.

Parties and courts must exercise judgment, made upon rea-

sonable inquiry and in good faith, about the potential sources of

discoverable information subject to preservation and produc-

tion obligations. The appropriate standard should be to search

sources that are most likely to contain relevant ESI and take rea-

sonable steps to preserve such information. If the responding

party is aware (or reasonably ȱȱǼȱȱęȱȬ

coverable ESI can be obtained only from a single source, that

ESI, or the source on which it is located, should be preserved for

possible review and production, absent agreement of the parties

or court order. On the other hand, mere suspicion that a source

¢ȱȱǰȱȱȱȱȱȱęȱȱ

require preservation of that source “just in case.”

Preservation or production from sources that are asserted to

be not readily accessible should be required only on a showing

of good cause (including a demonstration that the discovery is

proportional), with the requesting party bearing the burden to

show good cause on an appropriate motion. However, a party

may not deliberately make information less accessible for the

primary purpose of avoiding responding to proper discovery

requests in general. Such actions, particularly when undertaken

ę¢ȱȱȱȱǰȱȱȱǰȱȱ

should be subject to appropriate deterrent and/or remedial

measures by the court.

115

115. See, e.g., Orbit One Commc’ns, Inc. v. Numerex Corp., 271 F.R.D. 429,

437 (S.D.N.Y. 2010); Scalera v. Electrograph Sys., Inc., 262 F.R.D. 162, 175

(E.D.N.Y. 2009); Treppel v. Biovail Corp., 233 F.R.D. 363, 372 n. 4 (S.D.N.Y.

2006) (“[P]ermitting the downgrading of data to a less accessible form—

which systematically hinders future discovery by making the recovery of in-

formation more costly and burdensome—is a violation of the preservation

2018] THE SEDONA PRINCIPLES,THIRD EDITION 137

For a discussion on locating and recovering deleted, shadowed,

fragmented, or residual ESI, see Principle 9.

Illustration i. A party seeking relevant emails demands a

search of backup tapes (used for disaster recovery pur-

poses) for any relevant materials. No showing of special

ȱȱęȱȱȱȱȱǰȱȱȱȬ

sponding party took reasonable steps to preserve rele-

vant emails in primary systems, including Exchange or

Domino servers and active archives, by timely imple-

menting a legal hold. The request should be denied.

Illustration ii. A party seeking relevant emails demands

a search of backup tapes (used for disaster recovery

purposes). A showing is made that the emails sought

are highly relevant, were removed from primary

sources after the duty to preserve attached, and are now

only available on disaster recovery media. Absent ex-

ceptional circumstances, the request should be granted,

at least for a sample of the backup tapes.

Illustration iii. After interviewing key custodians and

searching its primary email systems, a responding party

concludes that a large volume of discoverable emails is

available in near-line email archives, as well as on indi-

vidual custodian hard drives, and on older, legacy

backup tapes. While the near-line email archive system

is not technically “active data,” relevant emails can be

obtained through ordinary means with little additional

obligation.”); Quinby v. WestLB AG, 245 F.R.D. 94, 111 (S.D.N.Y. 2006) (hold-

ing the responding party should bear the greater costs of production caused

by its downgrading of data); Kara A. Schiermeyer, The Artful Dodger: Re-

sponding Parties’ Ability to Avoid Electronic Discovery Costs Under 26(b)(2)(b)

and 26(b)(2)(c) and the Preservation Obligation, 42 C

REIGHTON L. REV. 227 (2009)

(discussing Treppel and Quinby and arguing that downgrading form of ESI

should be considered spoliation).

138 THE SEDONA CONFERENCE JOURNAL [Vol. 19

burden or expense. The responding party should con-

sider either searching the email archives to locate and

preserve the discoverable information or, alternatively,

searching custodian hard drives or removable media for

the discoverable information. Only after completing the

preservation of materials in one of these manners

should the responding party consider the proportional-

ity of obtaining any additional discoverable information

from the other source or backup tape system.

Comment 8.b. Preservation and production of ESI from

sources that are “not reasonably accessi-

ble” under the Federal Rules of Civil Proce-

dure.

The Federal Rules of Civil Procedure limit the obligation to

search and produce from sources of relevant ESI that are not

reasonably accessible due to undue burden or cost. This limita-

tion in Rule 26(b)(2)(B) is related to, but distinct from, the con-

cept of proportionality. ESI that is not proportional to the needs

of the case is not within the scope of discovery under Rule

26(b)(1). Even for ESI that is proportional to the needs of the

case, a party may assert that the ESI is “not reasonably accessi-

ble.”

“Not reasonably accessible” was founded on a paradigm

where there was “active data” and “inactive data,” and special

technology and resources were required to access “inactive

data.” Active Data, for example, is information residing on the

direct access storage media (disk drives or servers) that is read-

ily visible to the operating system and/or application software

with which it was created, and is immediately accessible to us-

ers or administrators without restoration or reconstruction.

The 2006 Advisory Committee Notes give as examples of ESI

that are not reasonably accessible: “backup tapes” intended for

2018] THE SEDONA PRINCIPLES,THIRD EDITION 139

disaster recovery purposes that are often not indexed, orga-

nized, or susceptible to electronic searching; legacy data that re-

mains from obsolete systems and is unintelligible on the succes-

sor systems; data that was “deleted” but remains in fragmented

form requiring a modern version of computer forensics to re-

store and retrieve; and databases that were designed to create

certain information in certain ways and that cannot readily cre-

ate very different kinds or forms of information. But as infor-

mation technology has evolved, the concept of “not reasonably

accessible” must evolve. The cost and effort to attain what is as-

serted to be “not reasonably accessible” will depend on a partic-

ular party’s existing technologies and resources—not the best

available in the market. In 2016, fewer enterprises rely upon

backup tapes and other such “inactive data” systems that were

more prevalent in 2006. Moreover, multiple copies of ESI may

exist in multiple systems, many of which are both reasonably

and readily accessible.

Rule 26(b)(2)(B) requires the responding party to identify by

¢ȱȱ¢ȱ¢ȱȱȱȱȱȱȱȱęȱ

as “not reasonably accessible.” Sę¢ǰȱȱȱŘŜǻǼǻŘǼǰȱ

if a party has determined that the only source of some propor-

tional and relevant ESI is one that is not reasonably accessible,

then it may be required to preserve that source,

116

disclose it

(with enough information so the other side can understand

what is at issue), be ready to demonstrate why production of

information is unduly burdensome or costly, and, if possible,

116. See 2006 Advisory Comm. Note to Rule 26(b)(2) (“A party’s identifica-

tion of sources of electronically stored information as not reasonably accessi-

ble does not relieve the party of its common-law or statutory duties to pre-

serve evidence. Whether a responding party is required to preserve

unsearched sources of potentially responsive information that it believes are

not reasonably accessible depends on the circumstances of each case.”).

140 THE SEDONA CONFERENCE JOURNAL [Vol. 19

discuss these issues at the initial Rule 26(f) meet and confer ses-

sions. This provision should not be read to require a list of all

sources of ESI that are not searched, nor does it require a listing

of sources a party has reasonably determined, in good faith, are

inaccessible and do not contain non-duplicative relevant ESI.

If the parties are unable to reach agreement as to the accessi-

¢ȱ ȱ ęȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ ȱ

sources for purposes of the dispute at issue, a motion to compel

or for a protective order may be brought. See Comment 2.c. Pro-

portionality may also dictate that costs are allocated to the re-

questing party when the burden to preserve or produce ESI is

disproportionate to the needs of the case.

For discussion of the use of cost shifting in electronic discovery,

see Principle 13.

Comment 8.c. Forensic data collection.

“Forensic” data collection, also known as creating a “foren-

sic copy,” “bit-stream image,” or “mirror image,” refers to the

creation of an exact copy of an entire physical storage media

(hard drive, CD-ROM, DVD-ROM, tape, etc.), including all ac-

tive and residual data and unallocated or slack space on the me-

dia.

117

Forensic data collection requires intrusive access to desktop,

server, laptop, or other hard drives or media storage devices,

and is sometimes appropriate when key employees leave em-

ployment under suspicious circumstances, or if theft or misap-

ȱȱȱȱȱęȱȱ¢ȱȱ

involved. However, making a forensic copy of computers is

¢ȱȱęȱȱȱȱ¡ǰȱ¡ǰȱȱęȱȱ

117. See The Sedona Conference Glossary: E-Discovery & Digital Information

Management (Fourth Edition),

15 S

EDONA CONF. J. 305, 328 (2014) (defining

“Forensic Copy”).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 141

of data analysis that can divert litigation into side issues and sat-

ellite disputes involving the interpretation of potentially ambig-

uous forensic evidence. While creating a forensic copy clearly is

appropriate in some circumstances, particularly when there is

unique ESI that can only be found—or an issue that can only be

resolved—through a forensic examination of the system, includ-

ing logs, registry keys, and tables, it should not be required un-

less circumstances specifically warrant the additional cost and

burden and there is no less burdensome option available. When

ordered, it should be accompanied by an appropriate protocol

or other protective measures that take into account any applica-

ble privacy rights and privileges, as well as the need to avoid

copying ESI that is not relevant. See Comment 6.d. In some

cases, it may be necessary, as an anticipatory matter, to meet

certain preservation obligations by making or retaining copies

of archival media or taking such steps as imaging the computer

hard drives of departing employees. Such copies may best pre-

serve all relevant ESI. If the parties anticipate such a need, the

topic of forensic-level preservation and review should be ad-

dressed at the initial meet and confer sessions.

Illustration i. After a key employee leaves X Company

(“X Co.”) to work for a competitor, a suspiciously simi-

lar competitive product suddenly emerges from the new

company. X Co. produces credible testimony that the

ȱ¢ȱȱȱȱęȱ

ȱęȱȱȱȱ¢ȱǰȱ

copying the data to a thumb drive, and deleting the data

from the original source so that the evidence of mischief

would never be found. The court properly orders that,

given the circumstances of the case, the requesting party

has demonstrated the need to obtain a mirror image of

the computer’s hard drive. If the defendant is not will-

ing to undertake the expense of hiring its own reputable

142 THE SEDONA CONFERENCE JOURNAL [Vol. 19

data recovery expert to produce all available relevant

data, inspection of the computer’s contents by an expert

appointed by the court or working on behalf of X Co.

may ȱęǰȱȱȱȱȱȱȬ

serve privacy, to protect data, and to prevent produc-

tion of unrelated or privileged material. Under a show-

ing of special need, with appropriate orders of

protection, efforts to restore ESI also could be ordered.

Illustration ii. A small group of staff employees of Y

Company (“Y Co.”) file a proposed wage and hour class

action asserting that Y Co. failed to pay overtime. The

employees demand that Y Co. make forensic mirror im-

age copies of their hard drives, as well as the hard

drives of all proposed class members, to ensure that sys-

tem metadata can be extracted to prove the hours that

employees were logged into their computers. Y Co. can

demonstrate that it maintains readily accessible system

logs that record the same information, and it is willing

to produce some or all of such logs to the plaintiffs. The

employees’ demand for a preservation order should be

rejected.

Comment 8.d. Accessibility of ESI held by vendors and

other non-parties.

The scope of discovery and the duty to preserve and produce

information extends to relevant and proportional ESI under the

custody or control of a party, including information that a non-

party such as a cloud service provider, an information technol-

ogy service provider, or a data processing contractor may pos-

sess. Many parties store large volumes of data with cloud ser-

vice providers, outsource all or part of their information

technology systems, or share data with third parties for pro-

cessing or for other business purposes. In contracting for such

services, parties should consider how they will comply with

2018] THE SEDONA PRINCIPLES,THIRD EDITION 143

their obligations to preserve and collect ESI for litigation. If such

provisions are not within the scope of contractual agreements,

costs may escalate and necessary services, including access to

relevant data, may be unavailable when needed. Consistent

with the notion that a party should not convert ESI into a less

useable format (see Principle 12), parties should not move ESI to

vendors for the purpose of making the ESI less accessible for lit-

igation. Parties also need to consider whether preservation no-

tices should be sent to non-parties, such as cloud providers, con-

tractors, and vendors, when litigation commences, particularly

because such non-parties otherwise may not be aware of litiga-

tion or attendant preservation obligations.

For a discussion of the challenges facing responding parties re-

garding potential obligations to preserve and produce ESI not in their

physical possession, see The Sedona Conference Commentary on Rule

34 and 45 “Possession, Custody, or Control.”

118

118. 17 SEDONA CONF. J. 467 (2016).

144 THE SEDONA CONFERENCE JOURNAL [Vol. 19

9. Absent a showing of special need and relevance, a re-

sponding party should not be required to preserve, re-

view, or produce deleted, shadowed, fragmented, or re-

sidual electronically stored information.

Comment 9.a. The scope of discovery of ESI that is de-

leted or otherwise not readily apparent.

This Principle recognizes that the burden of preserving, re-

viewing, or producing deleted, shadowed, fragmented, or resid-

ual ESI, or ESI that is otherwise not readily apparent, is normally

outweighed by any resulting benefit. This ESI can include sys-

tem data, transient and ephemeral data, unique computer arti-

facts (e.g., registry entries and log files), or data from emerging

technologies. However, where there is some special need for

this ESI, parties should be prepared to discuss how that need

can be met without unnecessarily increasing costs. In those mat-

ters, the requesting party should articulate good cause for

preservation and production, including the importance of the

ESI in resolving the claims and defenses in the case, or in mak-

ing other relevant ESI usable. The responding party should un-

derstand what ESI is available and the burden or expense of pre-

serving, collecting, and producing that ESI. Both parties should

consider and apply all of the pertinent proportionality factors.

See Principles 2 and 5.

Illustration i. Plaintiff claims that she is entitled to a com-

mission on a transaction based upon an email allegedly

sent by the defendant’s president. Defendant asserts

that there is no record of the email being sent in its

email system or the logs of its internet activity, and that

plaintiff’s copy of the email is not authentic. In these cir-

cumstances, it is appropriate to require preservation, re-

view, and production not only of the content of the

questioned email, but also of the email itself in its native

or near native form, containing the header information

2018] THE SEDONA PRINCIPLES,THIRD EDITION 145

and application metadata, which can play a crucial role

in determining whether the questioned message is au-

thentic.

Illustration ii. Plaintiff alleges that the defendant en-

gaged in billing fraud by overcharging for hourly work

done, some of which allegedly was for another client.

The plaintiff presents two materially different versions

of the same invoice, indicating that the invoice has been

altered. In this case, discovery of overwritten drafts, ed-

its, and deleted versions of the invoices may be appro-

priate, and production in native format also may be ap-

propriate.

Comment 9.b. The preservation and production of deleted

ESI.

Deleted data may at one time have been a “useful” docu-

ment generated in the ordinary course of business that had

value to the organization, although that value may have ex-

pired. However, this historic fact alone does not justify the re-

trieval and review of deleted data. Case law indicates that only

exceptional cases turn on “deleted” or “discarded” information

(whether paper or electronic). Employees and organizations

properly and routinely delete or destroy documents and ESI

that no longer have business value, so long as the information

was not subject to regulatory, investigatory, or litigation preser-

vation obligations when deleted or destroyed.

Accordingly, as a general rule and absent special circum-

stances, organizations should not be required to preserve de-

leted ESI in connection with litigation. While most computer

systems will have a plethora of deleted data that in theory could

be “mined,” there should not be a routine obligation for preser-

vation and discovery of deleted data. If deleted data is not ac-

146 THE SEDONA CONFERENCE JOURNAL [Vol. 19

cessed by employees in the ordinary course of business, pre-

sumptively there is no reason to require the routine preserva-

tion of such data. The relevance, at best, will be marginal in most

cases, while the burdens involved usually will be great. In ex-

ceptional cases, however, there may be good cause for targeted

preservation of deleted and residual data. Examples of such ex-

ceptional cases may include a failure to preserve by a custodian,

or cases resulting from a data breach or malware infection.

Parties should communicate early about the possible rele-

vance of deleted ESI in order to avoid costly and unnecessary

preservation on the one hand, or claims of spoliation on the

other.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 147

10. Parties should take reasonable steps to safeguard elec-

tronically stored information, the disclosure or dissem-

ination of which is subject to privileges, work product

protections, privacy obligations, or other legally en-

forceable restrictions.

Comment 10.a. Parties should employ the provisions of

Federal Rule of Evidence 502 or state ana-

logues to mitigate the risks of inadvertent

production of attorney-client privileged

and work product protected ESI.

The volume and form of ESI productions have substantially

increased the burdens and costs of privilege and confidentiality

reviews and the risks of inadvertent production of privileged

and work product protected information. Examples abound of

the burdens of reviewing massive quantities of text files,

metadata, and email strings for potentially privileged and pro-

tected information, and the burdens of preparing privilege logs

that meet varying judicial requirements. Moreover, the risk of

waiver from inadvertent productions of privileged and pro-

tected information has led many parties to employ very costly,

attorney-intensive privilege review procedures. The adoption of

Federal Rule of Evidence 502 and state law equivalents provides

parties and counsel with opportunities to manage costs and bur-

dens creatively and responsibly, and concurrently reduce the

risks that inadvertent disclosures of attorney-client written com-

munications and work product will result in waiving the privi-

lege or protection of the disclosed ESI, or in broader subject mat-

ter waiver.

119

119. See The Sedona Conference, Commentary on Protection of Privileged ESI,

17 S

EDONA CONF. J. 95, Appendix F, Federal Rule 502—State Law Analogues,

at 199 (2016).

148 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Comment 10.b. Parties should be informed fully of the pro-

tections afforded by Fed. R. Evid. 502.

Rule 502 provides a standard approach in federal courts for

adjudicating inadvertent waiver of attorney-client privilege and

work-product protection; as well as specific protections against

waiver in a federal proceeding or before a federal office or

agency and, where specific conditions are met, in other federal

and state proceedings. In addition to agreements the parties can

reach to protect privilege, parties should encourage the court to

enter a Rule 502 order to benefit from the significant protections

offered by the Rule.

Rule 502 provides the following protections:

x Rule 502(a) limits waiver by inadvertent dis-

closure of the information actually disclosed,

and restricts broader subject matter waiver to

instances where the disclosure is intentional,

the disclosed and undisclosed information

concern the same subject matter, and the dis-

closed and undisclosed information ought in

fairness be considered together.

x Rule 502(b) precludes waiver for inadvertent

disclosures where the privilege holder takes

“reasonable steps” to prevent disclosure and

promptly takes “reasonable steps” to avoid or

remedy the inadvertent disclosure including,

where applicable, following the procedures in

Fed. R. Civ. P. 26(b)(5)(B).

120

120. The Advisory Committee Note to Evidence Rule 502(b) lists a non-ex-

clusive set of “reasonable steps” that may be considered by the court when

deciding whether the production was inadvertent: the reasonableness of pre-

cautions taken; time taken to rectify the error; scope of discovery and extent

2018] THE SEDONA PRINCIPLES,THIRD EDITION 149

x Rule 502(c) provides that a disclosure made in

state proceedings does not constitute a waiver

in federal proceedings if either the disclosure

(i) would not be a waiver under Rule 502 in a

federal proceeding, or (ii) is not a waiver in the

state in which the disclosure occurred.

x Rule 502(d) provides that non-waiver provi-

sions in an order entered in a federal proceed-

ing preclude waiver of the disclosed infor-

mation in any other federal or state

proceeding.

x Rule 502(e) states that parties’ confidentiality

agreements that preclude or limit waiver are

binding only upon the parties unless incorpo-

rated in a court order under Rule 502(d).

x Rule 502(f) provides that Rule 502 is binding in

state court proceedings even where, pursuant

of the disclosure; number of documents reviewed and produced; time con-

straints for the production; depending on the circumstances, the use of ad-

vanced analytical software applications and linguistic tools in screening for

privilege and work product; and whether prior to the litigation, the respond-

ing party had implemented an efficient system of records management, in-

cluding the use of privilege designations. The Advisory Committee Note fur-

ther instructs that the steps taken must be evaluated in the context of “the

overriding issue of fairness.”

Rule 502(b) adopts the “intermediate” approach to addressing waiver

and supplants the “strict” approach (disclosure always results in waiver of

protection of the disclosed materials and subject matter waiver) and the “le-

nient” approach (disclosure never results in waiver). For discussions of ap-

proaches to waiver in federal courts prior to Rule 502(b), see, e.g., Hopson v.

Mayor of Baltimore, 232 F.R.D. 228, 235–36 (D. Md. 2005) and Victor Stanley,

Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 257–58 (D. Md. 2008) (“Victor Stanley

I”).

150 THE SEDONA CONFERENCE JOURNAL [Vol. 19

to Fed. R. Evid. 501, state law governs substan-

tive privileges and work product protection.

Parties must also be informed fully about applicable laws

and rules in state court actions and administrative proceedings

that do not provide the same protections against waiver as Rule

502. In states where analogues have not been adopted, parties

nonetheless may seek to enter agreements and move the court

to incorporate the agreements into a court order to reduce the

risk of waiver.

Comment 10.c. Parties should protect against waiver by

inadvertent production through agree-

ments incorporated in a Fed. R. Evid. 502(d)

order.

Rule 502(b) establishes a uniform approach in the federal

courts to determine whether an inadvertent production results

in waiver, and if so, the scope of the waiver. However, the bur-

den of asserting and proving inadvertence lies with the re-

sponding party and that burden can require substantial effort

and documentation. Moreover, given the multiple factors to be

considered and the discretion of courts in weighing the factors

and the evidence presented, both waiver and its scope remain

uncertain.

Parties can reduce the burdens and eliminate many of these

uncertainties by asking the court to enter a Rule 502(d) order.

An effective Rule 502(d) order need not be complex and can

simply provide that: (a) the production of privileged or work-

product protected documents, including ESI, is not a waiver,

whether the production is inadvertent or otherwise, in the par-

ticular case or in any other federal or state proceeding, and (b)

nothing contained in the order limits a party’s right to conduct

2018] THE SEDONA PRINCIPLES,THIRD EDITION 151

a review for relevance and the segregation of privileged infor-

mation and work product material prior to production.

121

An agreement can be reached at the parties’ Fed. R. Civ. P.

26(f) conference, incorporated into the parties’ discovery plan,

and presented to the court to be entered as part of the Fed. R.

Civ. P. 16(b) scheduling order. Pursuant to Rule 502(d), the in-

corporation of the agreement in a court order ensures that non-

waiver provisions apply in all other federal and state proceed-

ings. To the extent that an agreement is not reached, a proposed

agreement and either opposition or alternatives can be pre-

sented to the court at the Rule16(b) conference. The court may

enter the order in its proposed or a modified form or enter a

Rule 502(d) order on its own.

Comment 10.d. Fed. R. Evid. 502 does not protect all privi-

leges or address all privacy concerns.

Rule 502 is not a panacea; its protections are limited in scope

and effect. First, Rule 502 limits itself to “disclosure of a commu-

nication or information covered by the attorney-client privilege

or work-product protection”—it does not apply to other privi-

leges and protections that might be waived by inadvertent dis-

closure. Second, Rule 502 is limited to “a federal proceeding or

to a federal office or agency.” With approximately ninety per-

cent of cases in state rather than federal court, Rule 502’s protec-

tions are of little value to the vast majority of litigants appearing

before a state court without an equivalent rule or a Rule 502(d)

order in an earlier federal matter. Third, despite Rule 502(c) and

(f), the power of a state court to bind other state courts or federal

courts has not been addressed by the United States Supreme

Court. Fourth, Rule 502 does not protect a party from the nega-

121. See The Sedona Conference, Commentary on Protection of Privileged ESI,

17 S

EDONA CONF. J. 95, Appendix E, Model Rule 502(d) Order, at 198 (2016).

152 THE SEDONA CONFERENCE JOURNAL [Vol. 19

tive impact of the disclosure of information that is subject to pri-

vacy and data protection obligations. Fifth, Rule 502 cannot

erase inadvertently disclosed information from the mind of the

requesting party.

Thus, while a Rule 502(d) order can be valuable—and should

be obtained when and where available—parties cannot rely

solely upon Rule 502 to protect all their interests in maintaining

client confidentiality (see Comment 10.i.), other privileged com-

munications (e.g., marital, priest-penitent, or psychiatrist), or

personal information subject to privacy and data protection

rights (e.g., personally identifiable information, personal health

information, financial information, and student information).

Comment 10.e. Direct access to ESI or systems should be

sparingly allowed and only upon a show-

ing of good cause.

Special issues may arise with any request for direct access to

ESI or to computer devices or systems on which it resides. Pro-

tective orders should be in place to guard against any release of

proprietary, confidential, or personally identifiable ESI accessi-

ble to the adversary or its expert. Indeed, the widespread adop-

tion of state and federal privacy laws (as well as the application

of foreign data protection laws) demands protective orders and

procedures that provide adequate personal privacy safeguards

and meet applicable statutory and common law legal standards.

Similar concerns exist regarding the potential disclosure of at-

torney-client privileged or work product information that may

occur during such an inspection, notwithstanding Rule 502. See

Comments 6.d. and 10.b. Thus, even with a protective order in

place, court-ordered inspections of computer systems should be

used sparingly. Such orders should be narrowly tailored to the

circumstances, accompanied by a sufficient protective order,

2018] THE SEDONA PRINCIPLES,THIRD EDITION 153

and usually should provide that either a special master or a neu-

tral forensic examiner undertake the inspection. See Comment

6.d.

Comment 10.f. Parties should be informed fully of the

risks of “clawback” or “quick peek” agree-

ments and enter such agreements only in

exceptional circumstances.

The volume of ESI productions and the burdens and costs of

privilege reviews have increased interest in production subject

to “clawback” or “quick peek” agreements. In a “quick peek”

arrangement, ESI is produced to the opposing party before or

without a full review for privilege, confidentiality, or privacy.

The key element in entering a “quick peek” agreement is for the

parties to establish stringent guidelines and restrictions to pre-

vent waiver of privilege and confidentiality, including the abil-

ity to “claw back.” The intended effect of the agreement is that,

if the requesting party finds ESI that appears to be privileged or

protected, the responding party can “claw back” the ESI with-

out having waived privilege or protection.

122

“Quick peek” agreements should not be entered lightly and

should have the voluntary consent of the producing party.

Courts should not compel or indirectly leverage a party to enter

a “quick peek” agreement.

123

Parties, in all circumstances,

122. If the agreement is entered by the court in a federal proceeding and

comports with the provisions of Rule 502(d), the non-waiver provisions are

enforceable in other federal and state proceedings.

123. See In re Dow Corning Corp., 261 F.3d 280, 284 (2d Cir. 2001) (“[C]om-

pelled disclosure of privileged attorney-client communications absent

waiver or an applicable exception, is contrary to well-established precedent”

and “we have found no authority . . . that holds that imposition of a protec-

tive order . . . permits a court to order disclosure of privileged attorney-client

communications.”); Murphy Oil USA, Inc. v. Fluor Daniel, Inc., No. Civ. A.

99-3564, 2002 WL 246439, at *7 (E.D. La. Feb. 19, 2002) (noting that the court

154 THE SEDONA CONFERENCE JOURNAL [Vol. 19

should undertake an independent evaluation of the risks and

benefits of entering a “quick peek” agreement.

A Rule 502(d) order, or its state equivalent, provides sub-

stantial protection against a finding of privilege waiver in an-

other proceeding but does not eliminate all risks associated with

a “quick peek” agreement.

124

Notwithstanding those protections

and potential efficiencies and cost-savings, risks and limitations

make “quick peek” agreements and productions ill-advised for

most cases. First, once privileged or work product protected in-

formation is disclosed to an opposing party, the knowledge ob-

tained cannot be erased from their minds. Second, the disclosure

of privileged and work product protected information is con-

trary to fundamental tenets of the privilege pertaining to the

scrupulous protection of the confidentiality of the information.

Third, disclosure to an opposing party may increase the possi-

bility that the opposing party will move to compel the produc-

tion of claimed privileged or work product protected infor-

mation on the grounds that the privilege does not apply. Fourth,

if the proceeding is in a state court without a Rule 502(d) equiv-

alent, the “quick peek” agreement will be enforceable only be-

tween the parties in that proceeding. Accordingly, a finding of

waiver, regardless of whether the “quick peek” agreement was

an entered order, is more likely in proceedings in another state

or in a federal proceeding in which the privileged information

cannot compel the disclosure of privileged communications in clawback ar-

rangements).

124. If the action is pending in a state jurisdiction without a Rule 502(d)

equivalent, the party must be aware that another jurisdiction might deter-

mine that the disclosure of privileged information was voluntary and the

privilege waived. Moreover, subject matter waiver might be found if another

court finds that fairness requires the disclosure of other privileged or work

product protected documents pertaining to the same subject matter. Incor-

porating the “quick peek” agreement in a court order might reduce, but can-

not eliminate, these risks.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 155

may be relevant. Fifth, if the production encompasses personal

privacy information subject to domestic or foreign statutory reg-

ulatory protection, the disclosure of information to an opposing

party may result in liability or penalties, whether or not a pro-

tective order is entered and the “quick peek” agreement permits

withholding the information prior to final production.

125

Sixth,

Rule 502(d) does not protect trade secrets and other commer-

cially or personally sensitive information. A protective order

may reduce the risk of unauthorized disclosures by opposing

counsel but cannot eliminate the risk. Furthermore, “quick

peek” productions may include confidential information that is

not relevant and not otherwise subject to production, and the

disclosure of the information could cause commercial or per-

sonal harm to the responding party.

If a party and its counsel conclude that a “quick peek” pro-

duction is necessary or preferred on the grounds of cost, burden,

or time, the following steps should be followed. First, counsel

should ensure that the party is fully aware of the risks of disclo-

sure of privileged, personal, and confidential information; the

potential of waiver; the importance of the entry of a Rule 502(d)

order; and the heightened risks absent a Rule 502(d) order or its

state equivalent. Second, the party must approve the agreement

prior to its entry. Third, a Rule 502(d) order or its state equiva-

lent should be entered and should incorporate or reference the

provisions of the agreement. Fourth, to the extent feasible, par-

ties should assess the likelihood of the disclosure of privileged

and work product protected information, the potential signifi-

cance of the disclosed information in the proceeding, whether

125. For further information, see The Sedona Conference, Practical In-House

Approaches for Cross-Border Discovery & Data Protection, 17 S

EDONA CONF.J.

397 (2016); The Sedona Conference, Commentary on Privacy and Information

Security: Principles and Guidelines for Lawyers, Law Firms, and Other Legal Ser-

vice Providers, 17 S

EDONA CONF. J. 1 (2016).

156 THE SEDONA CONFERENCE JOURNAL [Vol. 19

personal privacy information subject to domestic or foreign stat-

utory or regulatory protection might be disclosed,

126

and

whether trade secret and commercially or personally sensitive

information might be disclosed.

127

It is inadvisable for a fully-informed party to enter a “quick

peek” agreement unless either the risks of disclosure of privi-

leged and work-product protected information, as well as com-

mercially and personally sensitive information, are non-existent

or minimal, or the discovery deadline cannot otherwise be

met—thereby risking sanctions for non-compliance—and alter-

native methods to protect against disclosure are not available.

Comment 10.g. Parties should consider using search terms

and technology assisted review (TAR) for

privilege reviews, along with other alter-

natives that may reduce privilege review

burdens.

Search terms or TAR may be helpful as part of a privilege

review process to identify probable privileged ESI and, in some

instances, to withhold that ESI without further privilege review,

either because an agreement with opposing counsel so provides

or because the confidence level in the process is sufficient to

minimize inadvertent production. In addition, search terms or

TAR may be used to help create privilege logs or, where agree-

ments can be reached, avoid logging the privileged ESI. See

Comment 10.h.

126. To the extent that personal privacy information might be disclosed,

specific protocols should be adopted to search for and withhold or redact the

information.

127. Parties should negotiate and enter protective orders and cross-refer-

ence the order in the “quick peek” agreement.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 157

If search terms or TAR are used, particularly in proceedings

where agreements either have not been reached or are not incor-

porated in a Rule 502(d) court order or a state equivalent, parties

should consider the following procedures to avoid inadvertent

disclosure:

x engage persons or entities with appropriate

skill and experience in developing search

terms or applying TAR;

x test and re-test samples to verify that the

search terms used or TAR protocol has a rea-

sonably acceptable degree of probability of

identifying privileged or protected infor-

mation;

x to the extent that manual reviews of identified

potentially privileged or protected infor-

mation are employed, ensure that junior or

contract attorneys or paralegals are properly

trained and that closer or questionable calls are

referred to more senior attorneys for final de-

termination;

x develop and apply quality assurance proto-

cols;

x fully document the procedures, protocols, and

material decisions, actions, and results (prefer-

ably in a non-privileged form), and the devel-

opment, sampling, testing, and quality assur-

ance to support the reasonableness of the

review; and

x enter protective orders to ensure non-waiver

and return of privileged information, and to

prevent the inappropriate dissemination of

personally identifiable information and trade

158 THE SEDONA CONFERENCE JOURNAL [Vol. 19

secret and highly confidential commercial in-

formation.

Parties should also consider alternative methods and protec-

tions that reduce privilege review burdens and expedite pro-

duction, such as:

x whether a staged production or the use of sam-

pling, including limiting the scope of logging

privileged or protected ESI to the staged or

sample set, can be used to meet the production

demands and schedule;

x whether to propose categories of information

that are highly likely to be privileged or pro-

tected and can be excluded from production;

x whether to move for a protective order to se-

cure additional time to conduct a reasonable

privilege review of the entire production set or

subsets identified as probable sources of privi-

leged and protected information; and

x whether to prepare a list of in-house and out-

side attorneys who communicated on legal is-

sues that are relevant to the claims and de-

fenses in the case, and the employees that

interacted with those attorneys.

Comment 10.h. Parties should address and attempt to

reach agreement on procedures for logging

privileged and protected work product in-

formation that meet the needs of the case.

Fed. R. Civ. P. 26(b)(5)(A)(ii) provides that where a party has

withheld otherwise discoverable information on the grounds of

privilege or work-product protection, the party must:

2018] THE SEDONA PRINCIPLES,THIRD EDITION 159

describe the nature of the documents, communi-

cations, or tangible things not produced or dis-

closed—and do so in a manner that, without re-

vealing information itself privileged or protected,

will enable other parties to assess the claim.

Logging large volumes of withheld ESI is often costly, bur-

densome, time-consuming, and disproportionate to the needs of

the case.

128

In addition, logging ESI such as email strings and

attachments is difficult and lacks any uniform standard. Re-

viewing, redacting, and logging metadata or embedded infor-

mation similarly can be a significant and undue burden. More-

over, the precise type and amount of information required to

meet the general standard set forth in Rule 26(b)(5)(A)(ii) varies

among courts, and frequently fails to provide sufficient infor-

mation for a requesting party to assess the claimed privilege.

Parties should reduce these burdens by addressing privilege

logging procedures and the scope and content of privilege logs

at the Rule 26(f) conference, and seek to reach an agreement that

may be incorporated in a Rule 16(b) scheduling order. If agree-

ment is not reached, the parties may present their respective po-

sitions to the court at the Rule 16(b) scheduling—or later—con-

ference.

In seeking agreement on privilege logging, parties may con-

sider:

x agreeing that some types of privileged ESI

need not be logged fully, e.g., communications

among members of the trial team or between

128. See 1993 Advisory Comm. Note to Rule 26(b)(5) (detailed privilege logs

“may be appropriate if only a few items are withheld, but may be unduly

burdensome when voluminous documents are claimed to be privileged or

protected, particularly if the items can be described by categories”).

160 THE SEDONA CONFERENCE JOURNAL [Vol. 19

client and counsel regarding the matter after

initiation of the proceeding;

x logging by categories as opposed to document-

by-document logging;

x specifying the content of logs, e.g., limit to ob-

jective information downloaded from ESI

metadata; and

x specifying the protocol and format for logging

specific types of ESI such as email chains, e.g.,

logging only the last in time email in a chain or

the email in the chain that includes all recipi-

ents of all the emails in the chain.

Comment 10.i. Counsel have ethical obligations to protect

privileged and confidential information.

Rule 1.1 of the American Bar Association (ABA) Model Rules

of Professional Conduct (Model Rules) states that a lawyer shall

provide “competent representation to a client” which requires

the “legal knowledge, skill, thoroughness and preparation rea-

sonably necessary for the representation.”

129

Comment 8 to the

Rule, as amended by the ABA in 2012, states in pertinent part:

“To maintain the requisite knowledge and skill a lawyer should

keep abreast of changes in the law and its practice, including the

benefits and risks associated with relevant technology . . . .”

In the context of protecting the privileged ESI, attorneys

should have knowledge of the applicable substantive law of

privilege, the provisions of Federal Rules of Evidence 501 and

502 and state equivalents, the client’s computer systems, any

129. The ABA Model Rules and their commentary are available at

http://www.americanbar.org/groups/professional_responsibility/publica-

tions/model_rules_of_professional_conduct/model_rules_of_profes-

sional_conduct_table_of_contents.html.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 161

search technologies employed to identify potentially privileged

or protected information, and the risks of disclosure in employ-

ing technologies or alternatives to full privilege reviews, e.g.,

“clawback” agreements. Counsel who do not possess the requi-

site technological knowledge and skills should consult with ap-

propriate experts.

Pursuant to Rule 1.6 of the Model Rules, lawyers have an

ethical duty to maintain the confidences of their client and must

“not reveal information relating to the representation of a client

unless the client gives informed consent, the disclosure is im-

pliedly authorized in order to carry out the representation or the

disclosure is permitted by paragraph (b) [of Rule 1.6].” Rule

1.6(c) expressly requires counsel to “make reasonable efforts to

prevent the inadvertent or unauthorized disclosure of, or unau-

thorized access to, information relating to the representation of

a client.” These duties require counsel not only to prevent dis-

closures of privileged and protected information, but also to in-

form the client fully of risks arising in the discovery and pro-

duction of ESI and the protections offered by Fed. R. Evid. 502.

Counsel should be mindful that these duties extend to all client

confidences, including confidential matter learned during the

course of the engagement, and undertake appropriate measures

to ensure that ESI reflecting or containing those confidences are

not disclosed absent informed client consent.

Rule 1.15 of the Model Rules requires attorneys to ensure the

safekeeping of their client’s property, which includes their doc-

uments and ESI. ESI that is privileged or subject to work prod-

uct protections is outside the scope of discovery under Fed. R.

Civ. P. 26(b)(1), and producing privileged or protected ESI could

be deemed a breach of the duty of safekeeping.

Lawyers also have a duty to supervise junior attorneys, staff,

and vendors. See Model Rules 5.1 and 5.3. The duty encom-

passes appropriate training and oversight of junior attorneys,

162 THE SEDONA CONFERENCE JOURNAL [Vol. 19

including contract attorneys who review ESI and make initial

decisions regarding privilege and confidentiality, and staff who

are assigned to conduct privilege reviews. The duty also re-

quires counsel to supervise the preparation and execution of

search terms and the selection and implementation of review

tools used by vendors or the client’s information technology

professionals.

Comment 10.j. Parties should be aware of and identify

personal privacy, trade secret, and confi-

dential ESI, and properly protect such in-

formation from unlawful or inappropriate

disclosure.

Electronic information systems contain significant amounts

of ESI that may be subject to trade secret, confidentiality, or pri-

vacy considerations. Examples of such information include pro-

prietary business information such as formulas, business meth-

ods, sales strategies, marketing and forecasting projections, and

customer and employee personal data (e.g., social security and

credit card numbers, employee and patient health data, and cus-

tomer financial records).

Privacy rights related to personal data may extend to cus-

tomers, employees, and non-parties. Ample protections for such

information during discovery are available through a Rule 26(c)

protective order or by party agreement. In negotiating protec-

tion for such information, counsel should consider the scope of

the applicable privacy rights, as defined in the operative con-

tract or rule of law, including whether such scope includes a ju-

dicial process exception. When potential discovery of ESI lo-

cated outside of the United States is involved, counsel should

2018] THE SEDONA PRINCIPLES,THIRD EDITION 163

pay attention to the foreign data protection and blocking stat-

utes.

130

To address appropriate protection for trade secrets and

other confidential commercial information in the United States,

the parties and counsel should discuss at the Rule 26(f) confer-

ence, or a state equivalent, a suitable protective order providing

that such information “not be revealed or be revealed only in a

specified way,” as authorized by Rule 26(c)(1)(G). The protec-

tive order may specify the qualifications of persons authorized

to see protected ESI; procedures for the use and treatment of

protected ESI during depositions, at trial, and in court filings

(e.g., filing under seal); and the destruction or return of pro-

tected ESI at the conclusion of the action.

Redactions or other actions necessary to protect private, per-

sonal information to meet required safeguards can be costly and

time-consuming. The parties should address and attempt to re-

solve such issues at the Rule 26(f) conference. For example, par-

ties may agree to exclude from production categories of private,

personal information that are only marginally relevant to the

claims and defenses or are cumulative of other produced infor-

mation.

130. See The Sedona Conference, Practical In-House Approaches for Cross-Bor-

der Discovery & Data Protection, 17 S

EDONA CONF. J. 397 (2016); The Sedona

Conference, Commentary on Privacy and Information Security: Principles and

Guidelines for Lawyers, Law Firms, and Other Legal Service Providers, 17 S

EDONA

CONF. J. 1 (2016).

164 THE SEDONA CONFERENCE JOURNAL [Vol. 19

11. A responding party may satisfy its good faith obliga-

tions to preserve and produce relevant electronically

stored information by using technology and processes,

such as sampling, searching, or the use of selection cri-

teria.

Comment 11.a. Employing technology to search for rele-

vant ESI is reasonable, and can create cost

and time savings.

Using a manual process to find relevant ESI may be infeasi-

ble or unwarranted in cases with complex data systems or large

volumes of ESI. Using search methods—based on a combination

of technology and process to help search for, preserve, retrieve,

and produce relevant ESI—can result in cost and time savings,

and should be viewed as reasonable, valuable, and often a prac-

tical necessity.

131

For example, ESI may be found in broad groupings based on

the “container” and not the “content,” such as in an email “in-

box” or “outbox,” on a hard drive or mobile device, or on a

shared drive or web server. Such unstructured or semi-struc-

tured data may not be stored in a manner conducive to identi-

fying relevant ESI.

Success in using any search method based upon a combina-

tion of technology and process will be enhanced by a well

thought out process with substantial human input on the front

end, a basic understanding of the search methodology, includ-

ing any potential limitations and risks, and an evaluation of how

the technology would interface with the data source to be

searched. The choice of a specific search method will depend on

131. For additional information, see The Sedona Conference, Best Practices

Commentary on the Use of Search & Information Retrieval Methods in E-Discovery,

15 S

EDONA CONF. J. 217 (2014).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 165

the specific legal context in which it is employed.

132

Before em-

ploying a search technology, the responding party should per-

form due diligence on alternative information retrieval products

or services, understand any potential limitations in capabilities,

and test the technology(ies) against a data sample. Due to char-

acteristics of human language, the various types of ESI searched,

and the various ways organizations store ESI, the use of search

tools does not guarantee that all relevant ESI will be identified

in large data collections; but that is not, and never has been, the

standard—reasonableness and proportionality is the standard.

Moreover, different search methods may produce differing re-

sults, subject to a measure of statistical variation inherent in the

science of information retrieval. The differences in search meth-

odology, and the limits on the technology, also may hinder uses

in different legal contexts. Search methods usually involve an

iterative approach that modifies the search parameters based on

the results of the searches, and different search methodologies

may be applied to different data sources. Absent an agreement

on the search methods to be used, parties should be prepared to

explain their choice of search methods, especially if there are

perceived deficiencies in the identification and preservation ef-

forts or production. See Principles 6 and 7. Documenting the

search methods, execution, and results may help answer ques-

tions from opposing counsel or a court. To meet a party’s dis-

covery obligations, and a legal counsel’s ethical obligations, any

132. For example, some tools may work well in some contexts, but not so

well in others. Antitrust investigations and litigation often involve broad al-

legations relating to marketing and competition. In such matters, technology

assisted review may be more time- and cost-effective in culling relevant in-

formation than more traditional search terms. Conversely, in a technical case

involving a specific patent design, search terms may be a perfectly adequate

and cost-effective approach.

166 THE SEDONA CONFERENCE JOURNAL [Vol. 19

search methodology and process employed must be calculated

to yield relevant information.

Illustration i. The relevant custodians each have 2 to 8

GB of ESI on their hard drives. The responding party,

using a forensically sound process, collects those user-

created files and has a third-party vendor process and

index them and place them in a review platform. Rather

than review every user-created file, the responding

party reaches agreement with the requesting party on a

series of search terms that capture the key concepts rele-

vant to the claims and defenses, including restrictions

for the relevant time frame. The responding party then

reviews this subset to cull out (and log) privileged mat-

ter and confirm the relevance of other ESI for produc-

tion. The responding party has satisfied its obligation to

identify and produce relevant ESI.

Courts should encourage and promote the use of technology

and processes to search, preserve, collect, review, and produce

ESI to ensure that the costs and burdens associated with the

preservation, collection, review, and production of responsive

ESI is proportional to the needs of the case.

133

133. See The Sedona Conference, Commentary on Proportionality in Electronic

Discovery, 18

EDONA CONF. J. 141 (2017) (“Principle 2: Discovery should fo-

cus on the needs of the case and generally be obtained from the most con-

venient, least burdensome, and least expensive sources.”); Maura R. Gross-

man & Gordon V. Cormack, Comments on “The Implication of Rule 26(g) on the

Use of Technology-Assisted Review,” 7 F

ED.CTS.L.REV. 285 (2014); Bennett B.

Borden & Jason R. Baron, Finding the Signal in the Noise: Information Govern-

ance, Analytics and the Future of Legal Practice, 20 R

ICH. J.L. & TECH. 7 (2014);

George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System

Adapt?,13 R

ICH. J.L. & TECH. 10 (2007).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 167

Comment 11.b. Sampling can substantially reduce the cost

of discovery.

Parties should consider using sampling techniques to nar-

row the burden of searching voluminous ESI. For example, em-

ploying a search methodology on a sample in a data source

could reveal that a very low percentage of files in that data

source contain relevant ESI. This may weigh heavily against a

need to search that source further, or it may be a factor in a cost

allocation analysis. Such techniques also may reveal substantial

redundancy among sources (e.g., duplicate ESI is found in mul-

tiple locations) such that it is reasonable for the organization to

preserve and produce ESI from only one of the sources.

134

Comment 11.c. Counsel should oversee the identification

and collection processes.

Depending on the nature of the sources of ESI and the appli-

cation of proportionality principles, both manual and auto-

mated procedures for collection may be appropriate in some sit-

uations. Whether manual or automated, the procedures must be

directed and overseen by legal counsel to assure compliance

with discovery and ethical obligations. See Comment 10.i.

Manual collection may be performed by the document au-

thors or custodians themselves, by litigation support or infor-

mation services personnel, or by others. In a manual collection,

the items may be copied or transmitted by the end-user, or by

using tools designed for forensically sound collections, and un-

der a defined written protocol designed to preserve relevant

134. See The Sedona Conference, Best Practices Commentary on the Use of

Search & Information Retrieval Methods in E-Discovery, 15 S

EDONA CONF. J. 217

(2014); The Sedona Conference, Commentary on Proportionality in Electronic

Discovery, 18

EDONA CONF. J. 141, cmt. 4.c., at 165 (2017) (use of sampling to

demonstrate the rate of responsive information in a source as an aid in deter-

mining whether the source is sufficiently important to warrant discovery).

168 THE SEDONA CONFERENCE JOURNAL [Vol. 19

metadata. Self-collections by custodians may give rise to ques-

tions regarding the accuracy and completeness of collections if

directions and oversight by legal counsel or forensics experts are

poor or non-existent.

Automated or computer-assisted collection involves using

computerized processes to collect ESI meeting certain criteria,

such as search terms, file and message dates, or folder locations.

Automated collection can be integrated with an overall elec-

tronic data archiving or retention system, or it can be imple-

mented using technology specifically designated to retrieve in-

formation on a case-by-case basis. Regardless of the method

chosen, consistency across the processes including any de-du-

plication techniques can help ensure that responsive ESI is col-

lected and produced.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 169

12. The production of electronically stored information

should be made in the form or forms in which it is or-

dinarily maintained or that is reasonably usable given

the nature of the electronically stored information and

the proportional needs of the case.

Comment 12.a. Special characteristics of ESI (metadata

and non-apparent/undisplayed data) may

be pertinent to the form in which ESI

should be preserved and produced.

The forms of ESI are more varied and complex than paper.

135

ESI is fundamentally different from paper information in that it

is dynamic, created and stored in different forms, and has a sub-

stantial amount of metadata and other non-apparent or undis-

played data associated with it. Because of these differences, as

well as others, the preservation and production of ESI can raise

distinct legal and practical issues.

An electronic document or file usually includes not only the

visible information but also hidden text, formatting codes, for-

mulae, and other information associated with the file. These

many types of ancillary information are often lumped together

as “metadata,” although there are some important distinctions

between different types of metadata.

136

Two of the most com-

mon distinctions are between “application” metadata and “sys-

tem” metadata. Application metadata is created as a function of

the application software used to create the document or file.

135. See The Sedona Principles: Best Practices Recommendations & Principles for

Addressing Electronic Document Production, THE SEDONA CONFERENCE, Intro-

duction, at 1 (2d ed. 2007), https://thesedonaconference.org/publication/

The%20Sedona%20Principles.

136. See generally The Sedona Conference Glossary: E-Discovery & Digital Infor-

mation Management (Fourth Edition), 15 SEDONA CONF. J. 305, 330, 339, 357, 361

(2014) (containing definitions of “Metadata,” “User Created Metadata,”

“System Generated Metadata,” and “Hidden Files or Data”).

170 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Common application metadata instructs the computer how to

display the document (e.g., the proper fonts, spacing, size, and

color). Other application metadata may reflect modifications to

the document, such as prior edits or editorial comments. This

metadata is embedded in the file it describes and moves with

the file when it is moved or copied. System metadata reflects in-

formation the user or the organization’s information manage-

ment system creates, sometimes automatically. Such infor-

mation may, for example, track the title of the document, the

identification of the computer that created it, the assigned data

owner, and other document “profile” information, such as file

creation and modification dates. System metadata generally is

not embedded within the file it describes, but is stored exter-

nally on the organization’s information management system.

Depending on the circumstances and needs of the case, a

particular piece of metadata may be critical or completely irrel-

evant. Accordingly, counsel should consider the data types that

are relevant to the claims or defenses, what metadata associated

with those data types may be relevant or may play a functional

role in the use of the relevant ESI, and whether that metadata

should be preserved, requested, or produced.

Aside from potentially bearing upon the merits of the case,

metadata also may play a functional role in the usability of ESI.

For example, system metadata may allow for the quick and effi-

cient sorting of files by virtue of the dates or other information

captured in metadata. Application metadata may be critical to

allow the functioning of routines within the file, such as the cod-

ing that makes documents display in a certain way to the user.

Additionally, both system and application metadata may be val-

uable when using technology platforms for searching, culling,

and analyzing large volumes of ESI.

In addition to application and system metadata, some ESI in

its “native format” will contain “user created data” that may not

2018] THE SEDONA PRINCIPLES,THIRD EDITION 171

be apparent on the face of the document when printed, such as

formulae and comments in spreadsheets, speaker notes in

presentation files, or “tracked changes” in word processing

files.

137

This typically undisplayed, non-apparent, user created

data may be stored in a variety of manners within a native for-

mat file.

A native format file contains application metadata that may

not always be contextually accurate. For example, when a Mi-

crosoft Word document is created, the computer on which that

document is saved may automatically assign the document an

“author” based on the information stored on that computer.

That document subsequently may be used as a template by

other persons, but the original “author” information may not

change. Thus, subsequent iterations of the document may carry

as an “author” a person with no knowledge of the document’s

content. Similarly, if a Microsoft Word document is created on

one machine, and transferred to and saved to a second machine

without being altered, the copy on the second machine (errone-

ously) will show the date the document was saved to the second

machine as the date created. Consequently, care should be taken

when handling native format files, and their accompanying

metadata and other non-apparent data, to avoid any inadvert-

ent alteration.

Comment 12.b. Ideally, the form or forms used for produc-

tion of ESI should be agreed upon early.

Absent agreement, ESI must be produced as

137. See The Sedona Conference Glossary: E-Discovery & Digital Information

Management (Fourth Edition), 15 S

EDONA CONF. J. 305, 341 (2014) (“Native For-

mat: Electronic documents have an associated file structure defined by the

original creating application. This file structure is referred to as the native

format of the document.”).

172 THE SEDONA CONFERENCE JOURNAL [Vol. 19

ordinarily maintained or in a form or forms

reasonably usable to the requesting party.

In amending Rule 34(b) in 2006 to accommodate the expand-

ing use and production of ESI, the Advisory Committee encour-

aged parties to reach agreement on the various form or forms of

production, given that different types of data may serve differ-

ent purposes and the potential need for native format produc-

tion and metadata may vary. The default forms of production

appropriate to paper discovery did not always have direct

equivalents in electronic discovery, but the Rule 1 goals should

be the same—to encourage forms of production that would fa-

cilitate the orderly, efficient, and cost-effective production of ESI

and which allow the requesting party to meaningfully analyze,

search, and display the produced electronic data.

138

Absent agreement, ESI must be produced in the form in

which it is ordinarily maintained or in a form that is reasonably

usable to the requesting party.

139

Typically, a requesting party

does not need ESI produced in its native format in order to ac-

cess, cull, analyze, search, and display the ESI. Indeed, the most

common way to produce ESI for more than a decade has been

to create a static electronic image in Tagged Image File Format

(TIFF) or Adobe Portable Document (PDF) file format, to place

the extracted text from the document into a text file, and to place

the selected metadata and other non-apparent data into one or

more separate load files.

140

This form is frequently referred to as

the production of “TIFF, Text and Load Files” or “TIFF+”. With

138. See Comment 3.c.; Rules 1 and 26(f).

139. See Principle 4 regarding using Rule 34 requests and responses to spec-

ify forms of production.

140. See The Sedona Conference Glossary: E-Discovery & Digital Information

Management (Fourth Edition), 15 S

EDONA CONF. J. 305, 323, 337, 341, 347, 359

(2014) (containing definitions of “Electronic Image,” “Load File,” “Native

Format,” “TIFF,” and “Portable Document File (PDF)”).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 173

production in this format, the requesting party may reassemble

the components in a fashion compatible with a chosen review

platform, so that the produced data can be text-searched and

sorted or filtered based on available metadata fields.

Parties should not demand forms of production, including

native files and metadata fields, for which they have no practical

use or that do not materially aid in the discovery process. For

example, it may be excessive for a party to demand that ESI be

produced in native format when the evidence needed to prove

the claims and defenses of the parties is found on the face of the

documents, and the information contained in the text and load

Files will allow the requesting party to organize and search the

documents. Indeed, even with technological advances, in the

majority of instances, TIFF+ is a “reasonably usable” form of

production for most purposes and types of ESI under Rule

34(b)(2)(E)(ii). Accordingly, requesting parties should avoid de-

manding a form of production, such as all ESI to be produced in

native format, unless they have a demonstrably reasonable need

for that form of production and the necessary technology, skills,

and resources available to make reasonable use of and to protect

the ESI.

141

Conversely, responding parties should not seek to

produce ESI in a form or forms that inhibit the ability of the re-

questing party to use advanced technology reasonably required

to access, cull, analyze, search, and display the information. Fi-

nally, all sides should bear in mind that both requests and re-

sponses to discovery are bounded by Rule 26(g) obligations.

In sum, when selecting the form or forms of production of

ESI—when requesting production, when responding to re-

quests for production, when meeting and conferring under Rule

141. See Comment 12.b.ii. for further commentary regarding technical and

practical issues related to the selection of the form or forms of production

depending on the file types, and issues related to native file and TIFF+ pro-

duction.

174 THE SEDONA CONFERENCE JOURNAL [Vol. 19

26(f)(3), and when participating in Rule 16(b) scheduling confer-

ences—parties and the court should consider: (a) the forms most

likely to provide the information needed to establish the rele-

vant facts related to the parties’ claims and defenses; (b) the

need to receive ESI in particular formats in order to functionally

access, cull, analyze, search, and display the information pro-

duced; (c) whether the information sought is reasonably acces-

sible in the forms requested; (d) the relative value, and potential

challenges created, by responding with ESI in the requested for-

mat(s); and (e) the requesting party’s own ability to effectively

manage, reasonably use, and protect the information in the

forms requested.

Comment 12.b.i. To be “reasonably usable,” the form of ESI

need not necessarily be its native format or

the form in which it is “ordinarily main-

tained.”

Principle 12 of the Second Edition of The Sedona Principles

moved beyond restating the then-current Rule 34(b) by assert-

ing that parties should also take into account “the need to pro-

duce reasonably accessible metadata that will enable the receiv-

ing 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.”

142

It was understood by the drafters at the time,

however, that the standard was not for the requesting party to

literally have the same ability to “access, search and display” the

information in the ordinary course (which may have required a

142. The Sedona Principles: Best Practices Recommendations & Principles for Ad-

dressing Electronic Document Production, T

HE SEDONA CONFERENCE, Principle

12, at 60 (2d ed. 2007), https://thesedonaconference.org/publication/

The%20Sedona%20Principles (emphasis added).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 175

significant investment in time, money, and proprietary re-

sources), but the same ability to “access, search and display” the

information in the context of prosecuting and defending the

claims and defenses at issue in the litigation. Since the publica-

tion of the Second Edition, there have been significant develop-

ments in technology and the case law which may require a fur-

ther nuanced approach to the formats for the production of ESI

in certain cases, and which also underscore that it may not be

practical or even possible to provide a requesting party with

“the same” ability as the responding party to access, search, and

display information. Indeed, parties’ desire or ability to use the

various tools that have been and will be developed can vary as

much as the evolving technologies themselves.

The touchstone remains, under Rule 34(b)(2)(E), that a re-

questing party is entitled to the production of ESI as it is ordi-

narily maintained or in a form that is reasonably usable for pur-

poses of efficiently prosecuting or defending the claims and

defenses involved in the matter. Consequently, the Third Edi-

tion of Principle 12 eliminates the phrase “the same ability,” and

instead emphasizes that the parties should follow the Federal

Rules and seek to reach agreement for the production of ESI as

“ordinarily maintained or in a reasonably usable form or forms”

that provide the requesting party a functionally adequate ability

to access, cull, analyze, search, and display the ESI, as may be

appropriate given its nature and the proportional needs of the

case. See Comment 3.c. In some cases, this will mean that the

production format provides the requesting party with the same

ability to access, cull, analyze, search, and display the ESI as the

responding party has in prosecuting or defending the matter

(which may differ from how a responding party can access or

search its own data in the ordinary course of conducting its busi-

ness), but that is not a requirement.

176 THE SEDONA CONFERENCE JOURNAL [Vol. 19

The form in which ESI is “ordinarily maintained” may not

be conducive to efficient production, and a requesting party

may not want or need ESI to be produced as “ordinarily main-

tained” as it may not be reasonably usable or functional to ac-

cess, cull, analyze, search, and display the ESI. For example,

emails are generally not produced in their true “native” format

as they are “ordinarily maintained,” but instead they are com-

monly transformed into an alternative, reasonably usable elec-

tronic format. More specifically, the native format for Outlook

and Lotus Notes emails are not the MSG and NSF file types, re-

spectively, but instead the emails have been taken from their na-

tive email application format and exported into those standard

formats that contain the message, any attachments, and the per-

tinent application metadata as well as miscellaneous non-appar-

ent data. Similarly, producing relevant database materials in

their true native format may not be reasonably feasible, and the

cost and effort required to produce them in native format may

not be proportional to the needs of the case.

143

While, as noted above, courts repeatedly have found under

the facts presented that, in the context of Rule 34(b)(2)(E)(ii), a

TIFF+ production is reasonably usable, the 2006 Advisory Com-

mittee Note to Rule 34(b) warns that “[i]f the responding party

ordinarily maintains the information it is producing in a way

that makes it searchable by electronic means, the information

should not be produced in a form that removes or significantly

degrades this feature.” For this reason, some courts have ruled

that production of static electronic images without text and load

files is not reasonably usable and is therefore impermissible un-

der Rule 34(b)(2)(E)(ii).

143. For further information on these specific issues, see The Sedona Con-

ference, Database Principles Addressing the Preservation and Production of Data-

bases and Database Information in Civil Litigation, 15 S

EDONA CONF. J. 171 (2014).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 177

As an alternative to producing ESI in a reasonably usable

form, Rule 34(b)(2)(E)(ii) allows production in the forms in

which the ESI is ordinarily maintained. The form in which ESI

is “ordinarily maintained” also is not necessarily synonymous

with the form in which it was created. There are occasions when

legitimate business considerations involve the migration or

transfer of ESI to other applications or systems.

144

For example,

customer information may routinely be gathered by an organi-

zation from internet-based forms, and then stored in a relational

database for further business use before any litigation-related

obligations attach. The information in Microsoft Word docu-

ments, such as memoranda or correspondence, later may be

transferred into static electronic images for long-term storage

and retrieval. Likewise, some organizations do not keep elec-

tronically-created documents in their original format, but in-

stead routinely transfer the content of the documents into a for-

mal records management database system. In such cases, the

form in which the ESI is maintained understandably varies from

that in which it was obtained or created, but producing ESI in

that form nevertheless meets the “ordinarily maintained” re-

quirement of Rule 34(b)(2)(E)(ii).

Comment 12.b.ii. Parties should consider and understand the

pros and cons of preserving and producing

ESI in native format.

Depending on the circumstances of the particular matter, it

may be appropriate to produce certain types of ESI, such as

144. See The Sedona Conference Glossary: E-Discovery & Digital Information

Management (Fourth Edition), 15 S

EDONA CONF. J. 305, 341 (2014) (Native For-

mat: “Because viewing or searching documents in the native format may re-

quire the original application (for example, viewing a Microsoft Word docu-

ment may require the Microsoft Word application), documents may be

converted to a neutral format as part of the record acquisition or archive pro-

cess.”).

178 THE SEDONA CONFERENCE JOURNAL [Vol. 19

spreadsheet files (e.g., Microsoft Excel), portable database files

(e.g., Microsoft Access), audio/video files (e.g., WAV, JPG, GIF,

MPG, MP3, DMG, etc.), and, on occasion, even presentation files

(e.g., Microsoft PowerPoint) in native format. This is because a

TIFF+ production of these types of ESI may not provide the re-

questing party relevant aspects of the ESI in a reasonably usable

format. Or, for example, if there is a reasonable question regard-

ing the authenticity of the underlying file, a forensic examina-

tion of the file (or even the underlying data source

145

) may be

necessary. Thus, a format that may be reasonable for most of the

production (e.g., TIFF+) may not be reasonable for a certain sub-

set of files or even specific files.

Disadvantages to native production may include technolog-

ical challenges such as the ability or inability to redact ESI effec-

tively in its native format, and issues regarding the application

of page-level Bates numbering as opposed to document-level

Bates or control numbers that can be assigned and maintained

for ESI produced in native format. Additionally, suitable appli-

cations for accessing, searching, and displaying native format

are not always accessible to requesting parties, who may also

lack the equipment or expertise required to use such applica-

tions.

146

Parties should further weigh the potential burdens and

offsetting efficiencies that can come from the production of ESI

in native format.

For example, in the digital age, the ease with which ESI can

be copied and moved has raised concerns about the security of

145. See Principle 9.

146. As one commentator has observed: “One reason for the alternative

production in a reasonably usable form is to prevent a party from using na-

tive format as a kind of non-production because the opposing party may not

have the ability to read the ESI in its native format. The opposing party may

not have access to the application in which the ESI was created.” Ralph C.

Losey, Hash: The New Bates Stamp, 12 J.

ECH.L.&POL. 1, 21 n.78 (June 2007).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 179

productions of large volumes of native format files in litigation.

Just as responding parties are obligated to take reasonable steps

that are proportional to the needs of the case to find and produce

requested information within the scope of discovery under Rule

26(b)(1), a requesting party should take reasonable steps to se-

cure the information they requested and received. This includes

investing in appropriate physical, technical, and human secu-

rity necessary to meet the obligations the requesting party in-

herits upon taking possession of that information.

147

Another risk that requesting parties must consider is

whether or not they have the necessary technical competence to

manage large volumes of native format ESI. Counsel who lack

the technical competence to handle ESI in its native format with-

out risking spoliation or inadvertent disclosure of client confi-

dences should either obtain professional assistance or decline

the representation.

148

147. See generally The Sedona Conference, Commentary on Privacy and Infor-

mation Security: Principles and Guidelines for Lawyers, Law Firms, and Other Le-

gal Service Providers, 17 S

EDONA CONF. J. 1 (2016). ESI productions in civil lit-

igations can be ripe targets for corporate espionage and data breach as they

may contain trade secrets and other proprietary business information; highly

sensitive and private medical, health, financial, religious, sexual preference,

and other personal information; or information about third parties subject to

contractual confidentiality agreements. Not only may this ESI be subject to

U.S. data privacy obligations, but as ESI is collected from beyond the borders

of the United States, these productions may include information that in-

volves the data privacy and protection rights of non-U.S. data subjects. A

requesting party inherits the data privacy and protection obligations that

come with the ESI it receives, including the responsibilities that arise from

the loss of that information.

148. See Cal. St. Bar Standing Comm. on Prof’l Resp. & Cond., Formal Op.

No. 2015-193 (June 30, 2015) (identifying nine skills relating to electronic dis-

covery that every attorney should be able to handle, alone or in association

with competent co-counsel); see also ABA M

ODEL RULES OF PROF’L CONDUCT

R. 1.1, cmt. 8. See Comment 10.i.

180 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Aside from production, parties should also consider the

most desirable form in which to preserve relevant ESI within the

scope of discovery. Preservation of ESI in native format pending

agreements or decisions on the ultimate form of production may

be beneficial. The failure to preserve and produce metadata or

other non-apparent information contained within a native file

may deprive the responding party of the opportunity later to

contest the authenticity of the document if that data would be

material to that determination. Similarly, subject to proportion-

ality considerations, responding parties may wish to consider

taking extraordinary preservation measures (e.g., preserving

hard drives or system logs), pending agreements or decisions

on the scope and form of production, when it is reasonably fore-

seeable that system-generated metadata

149

contains unique evi-

dence that likely is material to the claims and defenses involved

in the matter. Again, parties ideally should address such preser-

vation issues early on in the matter as part of their required Rule

26(f) discovery planning conference; or, if unable to reach agree-

ment, it should be brought to the court’s attention in the Rule

16(b) scheduling conference or later status conference.

150

Illustration i. Plaintiff seeks the production of native for-

mat files from defendant, asserting that to prepare its

case most cost-effectively and efficiently, it plans to uti-

lize advanced technology that works best if it has native

format files. Defendant asserts that it cannot redact the

native format files adequately prior to production, and

149. See The Sedona Conference Glossary: E-Discovery & Digital Information

Management (Fourth Edition), 15 S

EDONA CONF. J. 305, 357 (2014) (containing

definition of “System-Generated Metadata”).

150. See Principles 3 and 5 for more in-depth discussions regarding preser-

vation of ESI. See also 2006 Advisory Comm. Note to Rule 34 (regarding re-

taining the original source of ESI that is subject to a duty to preserve and not

degrading ESI subject to preservation and production obligations).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 181

insists on responding with only TIFF, text, and load

Files, with the images and text redacted as appropriate.

Assuming that the defendant is correct in that it cannot

redact native format files but has no other objection to

native format production, as an alternative, defendant

can produce native format files for all documents that

have no redactions. For ESI with redactions, excluding

spreadsheets, defendant can produce redacted TIFF im-

ages, accompanied by redacted text, and full metadata,

including all non-redacted hidden elements in fields.

For spreadsheets with redactions, the parties should

meet and confer on the possibility of manually remov-

ing any protected content, and saving the spreadsheet

as a new document for production, noting the fields re-

moved.

Illustration ii. Plaintiff alleges that the defendant en-

gaged in a fraud regarding software development. The

plaintiff seeks a preliminary order permitting direct ac-

cess to the hard drives of the software engineers in-

volved and demonstrates that the computer program

sold by defendant appears to incorporate plaintiff’s

source code. In this case, production of the source code

in native format may be appropriate, as well as targeted

forensic examination of the hard drives concerning the

development of the source code. The court may condi-

tion production on terms appropriate to protect recog-

nized legitimate intellectual property, business, and pri-

vacy interests of the defendant and its employees.

Comment 12.b.iii. Objections to unreasonable or non-propor-

tional requests for a form or forms of pro-

duction.

As discussed in Principle 2, all discovery is subject to rele-

vancy and proportionality considerations. Thus, a responding

182 THE SEDONA CONFERENCE JOURNAL [Vol. 19

party that believes that a production request is unreasonable,

not relevant, or not proportional may object to the requested

form or forms of production, state the alternative form or forms

that it intends to use, meet and confer in an effort to resolve the

matter, and, if they are unable to do so, seek a protective order

under Rule 26(c). See Comment 4.b. A responding party should

not simply refuse to produce ESI in the form or forms requested,

unilaterally produce in a form or forms that it prefers, or pro-

duce in forms that are not “reasonably usable” or as “ordinarily

maintained.” If it does so, it may well have difficulty invoking

protection under Rule 34(b)(2)(E)(iii) and arguing that it need

not produce the same information a second time. See Comment

12.d.

Comment 12.c. There is no requirement to label ESI to cor-

respond to the categories in requests for

production.

Rule 34(b)(2)(E) begins with this preamble: “Unless other-

wise stipulated or ordered by the court, these procedures apply

to producing documents or electronically stored information,”

and goes on to state in subpart (i) that “[a] party must produce

documents as they are kept in the usual course of business or

must organize and label them to correspond to the categories in

the request.”

151

Subparts (ii) and (iii) then go on to discuss ESI,

providing that, among other forms, ESI can be produced in rea-

sonably usable form or forms.

The preamble’s mention of both documents and ESI has led

to some confusion as to whether the labeling requirement in

subpart (i) applies to ESI. There is no indication that the Advi-

sory Committee on Civil Rules intended such a result. As ex-

plained below, there are at least four reasons why the better

151. Rule 34(b)(2)(E)(i) (emphasis added).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 183

view is that subpart (i) only applies to documents other than

ESI, and subparts (ii) and (iii) apply only to ESI.

First, when Rule 34(b) was amended in 2006 to state how ESI

was to be produced, the preamble did not include the phrase

“documents or electronically stored information,” and instead

said simply, “Unless the parties otherwise agree, or the court

otherwise orders,” even though, like the current version of Rule

34(b)(2)(E), subpart (i) addressed “documents” and subparts (ii)

and (iii) addressed “electronically stored information.” The 2007

amendments added “documents or electronically stored infor-

mation” to the preamble, but those amendments were part of a

project to conform style throughout the Rules, and nothing in

the Advisory Committee Notes to the 2007 amendments sug-

gests a substantive change from 2006 was intended. Second, the

preamble uses the words “documents or electronically stored in-

formation” in the disjunctive—suggesting that the requirements

of (i), (ii), and (iii) do not all apply to both documents and ESI,

and the language of the subparts is straightforward in address-

ing documents in (i), and ESI in (ii) and (iii). Third, with large

scale ESI productions, it would be burdensome to label every

produced file “to correspond to the categories of the request,”

and there is little guidance as to how a party is to produce ESI

as “kept in the usual course of business.” Finally, the production

of common metadata and source fields in a load file

152

should

suffice to permit the requesting party to sort and filter materials

using standard review software to determine how the materials

were “kept in the usual course of business.”

152. Most service providers have a list of approximately 30 common

metadata and source fields that they include with productions. See, e.g., LTPI

Model Stipulated Production Specifications, L

EGAL TECHNOLOGY

PROFESSIONALS INSTITUTE, available at https://www.legaltechpi.org/Resource-

ESI-Stipulations (last visited Feb. 14, 2017).

184 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Accordingly, in line with several courts,

153

subpart (i) should

not be interpreted to apply to ESI.

Comment 12.d. Parties need not produce the same ESI in

more than one format.

Provided that the forms of production are as “ordinarily

maintained” or “reasonably usable,” a party is not required to

produce the same information in both hard copy and electronic

format, or in both native format and another electronic format,

such as TIFF+.

154

A responding party should first identify the

form(s) in which it proposes to produce ESI pursuant to Rule

34(b)(2)(D), or risk that the requesting party can show that the

chosen form is not reasonably usable and have the court order a

further, more usable production. In addition, the 2015 Advisory

Committee Notes to amended Rule 34(b)(2)(C) make clear that

a responding party should specifically alert other parties if re-

quested ESI—such as metadata—is objected to and withheld,

and thereby facilitate an informed discussion of the objection.

Illustration i. After failing to address the issue of produc-

tion in their Rule 26(f) conference, a requesting party in-

discriminately demands that ESI be produced as “main-

tained in the ordinary course of business.” The

responding party timely objects to producing any ESI in

native format and states that production of all ESI will

be made through PDF or TIFF images with load files

containing electronically searchable text and selected

153. See, e.g., Kissing Camels Surgery Ctr., LLC v. Centura Health Corp.,

No. 12-cv-03012, 2016 WL 277721, at *3–4 (D. Colo. Jan. 22, 2016); National

Jewish Health v. WedbMD Health Servs. Grp., 305 F.R.D. 247, 253 (D. Colo.

2014); Anderson Living Trust v. WPX Energy Prod. LLC, 298 F.R.D. 514, 520–

27 (D.N.M. 2014).

154. Rule 34(b)(2)(E)(iii).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 185

application metadata. The requesting party does not re-

spond to the objection or request to meet and confer on the

topic. Subsequently, the responding party produces

emails and ESI in a PDF or TIFF format, and spread-

sheets in native format, all accompanied by a load file

including the searchable text and selected metadata for

each item of ESI. This production satisfies Rule 34(b) be-

cause the production is in reasonably usable form, e.g.,

electronically searchable and paired with essential

metadata, and there was no timely objection. If the re-

questing party moves to compel production in an addi-

tional form, for example in native format, the court

should reject the request pursuant to Rule

34(b)(2)(E)(iii).

Illustration ii. After failing to address the form of pro-

duction in their Rule 26(f) conference, a requesting party

indiscriminately demands that ESI be produced in na-

tive format. The responding party timely objects to re-

sponding with all documents in native format and states

that production instead will be made through PDF or

TIFF images with load files containing electronically

searchable text and limited application metadata se-

lected by the responding party. In response, the request-

ing party calls for a meet and confer on the topic. Dur-

ing the meet and confer, the requesting party narrows

its request for native format production of certain non-

privileged documents, such as spreadsheets and presen-

tation files, offering to allow for any such privileged

documents with redactions to be produced in a TIFF+

format. The requesting party also asks for inclusion of

some additional metadata fields in the load files associ-

ated with TIFF+ productions that will assist the request-

ing party’s use of commonly-used technology assisted

186 THE SEDONA CONFERENCE JOURNAL [Vol. 19

review tools. Without agreeing to the narrowed request

or seeking intervention by the court, the responding

party proceeds on its own to produce emails, spread-

sheets, and other ESI in TIFF+ format, including the

searchable text and selected metadata for each item of

ESI. This production of ESI fails to satisfy the goals of

Principle 12. In making a unilateral decision about the

form of production, the responding party failed to

honor its Rule 26(f) and Rule 34 responsibilities to meet

and confer in a reasonably cooperative manner in an ef-

fort either to resolve the issue or to present it to the

court. On a motion to compel after the unilateral pro-

duction, the court should consider, among other factors,

whether or not the TIFF+ production was in a form rea-

sonably usable by the requesting party for access, cull-

ing, analysis, search, and display of the information,

given the nature of the information and the needs of the

case. If the court were to conclude that the production

was not in reasonably usable form, the court, subject to

proportionality considerations, may order reproduction

of the requested native format files and the additional

metadata fields.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 187

13. The costs of preserving and producing relevant and

proportionate electronically stored information ordi-

narily should be borne by the responding party.

Comment 13.a. Factors for allocating the cost of produc-

tion.

The ordinary and predictable costs of discovery, including

preservation (addressed below in Comment 13.b.) and produc-

tion, are borne fairly by the responding party. However, Rule 26

has long empowered courts to allocate costs in appropriate cir-

cumstances.

155

Consideration of cost allocation traditionally has been and

continues to be at the discretion of the court. Rule 26(c)(1) has

long authorized orders to protect against “undue burden or ex-

pense.” Rule 26(c)(1)(B) now expressly provides for entry of

protective orders that allocate expenses for discovery. The 2015

Advisory Committee Note to this new provision observes, how-

ever, that cost shifting should not become a common practice

and that “[c]ourts and parties should continue to assume that a

responding party ordinarily bears the costs of responding.”

156

Moreover, the party seeking cost allocation typically bears the

burden to show that allocation is appropriate.

155. Consistent with the reference in Rule 26(c)(1)(B) to “the allocation of

expenses,” this Principle uses “cost allocation” as shorthand for situations

where some of the costs are “shared” by the parties and situations where all

of the costs are “shifted” to the requesting party. This Principle is limited to

the allocation of costs related to the preservation or production of ESI, even

though the cost allocation in Rule 26(c) has broader applications.

156. 2015 Advisory Comm. Note to Rule 26(c)(1)(B). The Advisory Com-

mittee Note also explains: “Authority to enter such orders is included in the

present rule, and courts already exercise this authority. Explicit recognition

will forestall the temptation some parties may feel to contest this authority.”

188 THE SEDONA CONFERENCE JOURNAL [Vol. 19

If the result of the proportionality analysis clearly demon-

strates that the requested discovery is appropriately propor-

tional, the discovery should be allowed with the presumption

that costs will not be allocated among the parties. Conversely, if

the result of the proportionality analysis clearly demonstrates

that the requested discovery is not proportional, and the request

is not within the permissible scope of discovery, the request

should be denied and cost allocation would not apply. If, how-

ever, the result of the proportionality analysis is not clear cut,

the court has discretion to allocate some or all of the costs to the

requesting party. See Principle 8. Cost allocation, however,

should not be used as a shortcut to resolve difficult proportion-

ality analyses or to “buy” arguably disproportionate discovery.

See Comment 13.c.

Factors to be considered in the context of allocating costs for

the production of ESI overlap with the proportionality factors in

Rule 26(b)(1) and include:

1) the extent to which the request is specifically tailored to

discover relevant information;

2) the availability of such information from other sources,

including testimony, requests for admission, interroga-

tories, and other discovery responses;

3) the importance of the issues at stake in the litigation;

4) the total cost of production, compared to the amount in

controversy;

5) the total cost of production, compared to the resources

available to each party; and

6) the relative ability of each party to control costs and its

incentive to do so.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 189

Thus, while certain of these factors also may bear on the

court’s proportionality analysis, the factors listed above are in-

tended to be weighed separately in the unique circumstance of

determining whether cost allocation is appropriate.

Comment 13.b. The cost of preservation should be allo-

cated only in extraordinary circumstances.

Just as the costs of production ordinarily are borne by the

responding party, the ordinary and predictable costs of preser-

vation typically are borne by the preserving party, subject to ap-

plication of proportionality principles. In the rare circumstance

where the requesting party makes specific preservation de-

mands and complying with those demands would require ex-

tensive and costly efforts or resources, cost allocation may be

appropriate.

Cost allocation should not be used to expand preservation

obligations beyond what is proportionate to the needs of the

case. Courts should discourage burdensome preservation de-

mands that have little or no reasonable prospect of producing

material assistance to the fact finder. See Comment 5.e.

As with the costs of production, the party seeking to allocate

the cost of preservation bears the burden of persuasion. That

burden of persuasion may be satisfied more readily at various

stages in the case, including after discovery has closed and sum-

mary judgment motions have been adjudicated, when infor-

mation that was preserved but has not been produced is less

likely to be requested or produced. For example, where a case

has been disposed of by the trial court and is awaiting resolution

of an appeal and the responding party desires to stop preserving

potentially relevant ESI that was not reviewed by the requesting

party, cost allocation may be appropriate if the requesting party

insists that the ESI be preserved during the pendency of the ap-

peal.

190 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Comment 13.c. Cost allocation cannot replace reasonable

limits on the scope of discovery.

Allocating the costs of extraordinary ESI discovery efforts

should not be used as an alternative to sustaining a responding

party’s objection to undertaking such efforts in the first place.

Instead, extraordinary discovery efforts should be required only

where the requesting party demonstrates substantial need or

justification, and cost allocation may be a condition of allowing

such discovery efforts to proceed.

Illustration i. A requesting party demands that the re-

sponding party preserve, restore, and produce ESI from

a backup tape. The requesting party produces some evi-

dence that relevant ESI, not available elsewhere, may

exist on the tape. The ESI, not being reasonably accessi-

ble, is costly to acquire, and the responding party seeks

a protective order conditioning its production upon

payment of costs. Absent proof that the responding

party intentionally has deleted ESI that is relevant to the

issues in the case to avoid discovery obligations, the

court should order the requesting party to pay at least a

portion of the costs.

Illustration ii. A requesting party demands that the re-

sponding party preserve, restore, and produce ESI

about a topic in dispute from backup media. The re-

questing party produces evidence that important rele-

vant ESI, not available elsewhere, is likely to exist on the

media. The ESI is reasonably accessible but is somewhat

burdensome to acquire, and the responding party seeks

a protective order conditioning its production upon

payment of costs. The protective order should be de-

nied.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 191

Comment 13.d. Non-party requests must be narrowly fo-

cused to avoid mandatory cost allocation.

Since 1991, Rule 45 has required persons issuing subpoenas

to take reasonable steps to avoid imposing undue burdens or

expense on the subpoenaed person and, if objection is made, any

order to compel production “must protect [the subpoenaed per-

son] from significant expense.” The 1991 Advisory Committee

Note to Rule 45 explains as follows:

A non-party required to produce documents or

materials is protected against significant expense

resulting from involuntary assistance to the

court . . . . The court is not required to fix the costs

in advance of production, although this will often

be the most satisfactory accommodation to protect

the party seeking discovery from excessive costs.

In some instances, it may be preferable to leave

uncertain costs to be determined after the materi-

als have been produced, provided that the risk of

uncertainty is fully disclosed to the discovering

party.

In support of this proposition, the Advisory Committee cited

a 1982 Ninth Circuit decision in a case where non-parties pro-

duced more than six million documents, and the costs of non-

party discovery exceeded $2 million. In light of the potentially

significant burdens associated with non-party discovery, parties

seeking information from non-parties have a substantial interest

in narrowly tailoring requests to avoid a greater likelihood that

a court may impose cost allocation. Indeed, parties seeking in-

formation from non-parties should be prepared to address these

issues at informal meet and confer discussions to determine if

disputes can be resolved by agreement instead of court rulings

on a motion to quash or a motion to compel. See Comment 3.a.

192 THE SEDONA CONFERENCE JOURNAL [Vol. 19

The nature of the relationship between the non-party and

parties to the litigation also may bear on cost allocation. If, for

example, a party’s accountant, payroll processing company, or

another contracted entity is subject to a subpoena, the court may

be less likely to allocate costs than for a non-party that has no

affiliation or relationship with the parties in the case.

157

157. See FED.R.CIV. P. 45(d)(2)(B)(ii) (protection not mandatory for a party’s

officer); Chevron Corp. v. Donziger, 11 Civ. 0691, 2013 WL 1087236, at *32–

33 (S.D.N.Y. March 15, 2013); see also The Sedona Conference, Commentary on

Rule 34 and Rule 45 “Possession, Custody or Control,” 17

EDONA CONF. J. 467

(2016).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 193

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.

Comment 14.a. Historical background and the adoption of

the 2015 amendment to Rule 37(e).

Case law concerning spoliation sanctions has evolved sub-

stantially in recent years. A circuit split had emerged on the is-

sue of whether a court could impose spoliation sanctions for the

negligent loss of relevant ESI, or whether a showing of bad faith

was required.

158

The December 2015 amendment of Rule 37(e)

was intended to resolve this circuit split, and provides that con-

sequences for failure to preserve ESI are available only upon a

finding that the ESI should have been preserved, the party failed

to take reasonable steps to preserve the ESI, and the relevant ESI

cannot be restored or replaced.

Principle 14 has long recognized that there must be a

ęȱȱȱ¢ȱȱȱȱȱȱȬ

ation sanctions, and that unintentional spoliation resulting in

prejudice more appropriately may be addressed through reme-

dial measures. Having clarified that unintentional destruction

of relevant ESI is not sufficient to trigger the imposition of spo-

liation sanctions, Rule 37(e) now is aligned in that respect with

158. 2015 Advisory Comm. Note to Rule 37(e) (“Federal circuits have estab-

lished significantly different standards for imposing sanctions or curative

measures on parties who fail to preserve electronically stored information.

These developments have caused litigants to expend excessive effort and

money on preservation in order to avoid the risk of severe sanctions if a court

finds they did not do enough.”); see Victor Stanley v Creative Pipe, 269 F.R.D.

497, 523–37 (D. Md. 2010).

194 THE SEDONA CONFERENCE JOURNAL [Vol. 19

The Sedona Principles.

159

The concepts of this Principle 14 should

apply in all relevant litigation contexts, including in state courts

that do not have procedural rules to the contrary.

160

Comment 14.b. Conditions for imposition of remedial

measures and sanctions.

Neither remedial measures nor sanctions for failure to pre-

serve relevant ESI are available under Rule 37(e) unless all of the

following conditions are met: (1) the ESI should have been pre-

served in the anticipation or conduct of litigation; (2) the ESI is

lost because a party failed to take reasonable steps to preserve

it; and (3) the ESI cannot be restored or replaced through addi-

tional discovery. Accordingly, no remedy is available if a party

had no duty to preserve the ESI, or if the relevant ESI is still

available, or if the relevant ESI was lost despite the party having

taken reasonable steps to preserve it.

If a court concludes that the party failed to take reasonable

steps to preserve the ESI, the court must consider whether the

ESI can be restored or replaced by other means. If the ESI cannot

be restored or replaced, the court may continue its analysis to

determine whether remedial measures or sanctions may be ap-

propriate.

159. Rule 37 does not use the term “sanctions.” Instead, the 2015 Advisory

Committee Note explains that the consequences authorized under Rule

37(e)(2) when there is an intent to deprive are “very severe measures to ad-

dress or deter failures to preserve electronically stored information.” Princi-

ple 14 uses “sanctions” as shorthand for these and other “severe measures”

to address or deter failures to preserve ESI.

160. Rule 37(e) expressly addresses only ESI, and not tangible things or

hard copy documents. Common law and state laws about the loss or destruc-

tion of potential evidence may conflict with Rule 37(e)’s approach to claims

about the loss of ESI. This Principle addresses only the loss of ESI, and differs

in one respect from Rule 37(e). That difference is discussed in Comment 14.d.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 195

Under Rule 37(e)(1), remedial measures are available upon a

finding of prejudice (see Comment 14.c.), whereas Rule 37(e)(2)

clarifies that spoliation sanctions are available only upon a find-

ing of intent to deprive another party of the use of the irretriev-

ably lost information that cannot be replaced through additional

discovery or other means. See Comment 14.d. Remedial

measures and spoliation sanctions are described in further de-

tail below.

Comment 14.c. Remedial measures are intended to redress

prejudice.

Upon a finding of prejudice, a court may direct a party that

has lost relevant ESI to undertake remedial measures no greater

than necessary to redress the prejudice and place the requesting

party in the position it would have been in if the lost, relevant

ESI had been produced. Remedial measures may include orders

for additional discovery or allocation of costs or attorneys’ fees,

and other measures traditionally employed by courts. Remedial

measures should not be applied as a substitute for sanctions, the

purpose of which is to punish undesired behavior; the applica-

tion of remedial measures should not be limited, however, such

that the party that has lost relevant ESI is in a better position

than it would have been in had the lost relevant ESI been pro-

duced to the requesting party.

Determining whether the loss of relevant information results

in prejudice requires an evaluation of whether the lost infor-

mation is irretrievable or can be replaced, and whether the lost

information is both unique and important to the litigation. De-

struction of relevant but duplicative information, for example,

is not prejudicial.

Rule 37(e) does not identify which party bears the burden of

proving prejudice and instead, according to the 2015 Advisory

Committee Note, leaves the parties to make their respective

showings and the court, to its discretion. A party deprived of

196 THE SEDONA CONFERENCE JOURNAL [Vol. 19

relevant information, however, likely faces a quandary when at-

tempting to establish the prejudice that is a prerequisite to im-

position of remedial measures, given the absence of the spoli-

ated information.

In addition, the timeliness of a challenge to production fail-

ures also may bear on prejudice, or the lack of it. Since their in-

ception, The Sedona Principles have urged an early constructive

dialogue between parties regarding preservation obligations

and expectations. The Federal Rules and many state counter-

parts also have adopted disclosure requirements as well as the

presumption of early dialogue on issues relating to ESI. A cor-

ollary to these early discussions is that untimely challenges to

production failures may not provide a basis for relief.

Illustration i. A requesting party does not object when

ESI is produced without metadata. Shortly before trial,

ȱęȱȱȱȱȱȱȱȱȱ

inference instruction based on the failure to produce

metadata. Having not raised the issue earlier, the party

waived the right to seek metadata or sanctions.

Comment 14.d. Sanctions may be appropriate where the

court finds an “intent to deprive.”

Sanctions are available only upon a finding of intent to de-

prive another party of the use of the irretrievably lost infor-

mation that cannot be replaced through additional discovery or

other means. Adoption of the “intent to deprive” standard is in-

tended to establish a uniform standard for addressing failure to

preserve relevant ESI and is consistent with the historic roots of

the duty to preserve and the desire to avoid the sometimes-in-

consistent standards for “intentional destruction.” A finding of

intent to deprive is also consistent with the premise of an ad-

verse inference instruction, which assumes that a party’s inten-

tional loss or destruction of evidence gives rise to a reasonable

2018] THE SEDONA PRINCIPLES,THIRD EDITION 197

inference that the evidence was unfavorable to the party respon-

sible for its loss or destruction.

This Principle differs from amended Rule 37(e)(2) in one re-

spect—the “incompetent spoliator.” Although the Rule requires

a finding of irretrievable loss before a court may impose reme-

dial measures or sanctions, this Principle recognizes that reme-

dial measures or some form of sanctions (e.g., paying a fine to

the court) may be appropriate to defer future behaviors where

there was an intent to deprive but ultimately no irretrievable

loss.

Illustration i. Two days after a party is scheduled to turn

over the laptop of a key executive, the executive runs a

program called “Evidence Eliminator” on the laptop re-

sulting in the loss of relevant ESI to the prejudice of the

requesting party. The requesting party provides the

court with forensic evidence establishing the foregoing

facts. The court finds an intent to deprive the requesting

party of the use of relevant ESI on the laptop. The court

may order both remedial measures and sanctions

against the responding party and, if appropriate, the

key executive individually.

Illustration ii. The same facts as set forth in Illustration i

above; however, through advanced forensic technology,

the ESI erased by the “Evidence Eliminator” software is

restored in full or in large part. Under the concepts of

this Principle 14 (but not Rule 37(e)), the court may elect

to order remedial measures and sanctions against the re-

sponding party and, if appropriate, the key executive,

including payment of the requesting party’s reasonable

198 THE SEDONA CONFERENCE JOURNAL [Vol. 19

expenses (including attorneys’ fees) incurred in recover-

ing the wiped data and litigating the issue.

161

Illustration iii. The requesting party asks for relevant ESI

from the company-issued laptop of a key former execu-

tive. The responding party advises that the laptop was

subject to a litigation hold and preserved for more than

a year, after which the company installed a new archiv-

ing system. The responding party contends that in-

house counsel was consulted about the laptop by the IT

department during the transfer to the new archiving

system and that in-house counsel directed that the data

on the laptop’s hard drive be imaged and stored to the

company’s server before the laptop was reissued. The

company ultimately acknowledges its inability to locate

the laptop data on its servers or backup tapes. The court

finds that the laptop included relevant, irreplaceable ESI

but that the responding party did not delete the ESI on

the executive’s hard drive with the intent to deprive the

requesting party of the relevant ESI. The court therefore

orders that the responding party pay the requesting

party’s attorneys’ fees incurred in litigating the issue,

but should not issue spoliation sanctions.

161. See CAT3, LLC v. Black Lineage, 14 Civ. 5511, 2016 WL 154116

(S.D.N.Y. Jan. 12, 2016).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 199

APPENDIX A: TABLE OF AUTHORITIES

Federal Cases

Anderson Living Trust v. WPX Energy Prod. LLC, 298 F.R.D. 514 (D.N.M.

2014) ............................................................................................................. 184

Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) .......................... 61

Blue Sky Travel & Tours v. Al Tayyar, 606 Fed. App’x. 689 (4th Cir. 2015)

....................................................................................................................... 106

Boeynaems v. LA Fitness Int’l, LLC, 285 F.R.D. 331 (E.D. Pa. 2012) ............. 96

Braxton v. Farmer’s Ins. Group, 209 F.R.D. 651 (N.D. Ala. 2002) ............... 133

Burnett v. Ford Motor Co., No. 3:13-cv-14207, 2015 WL 4137847 (S.D.W. Va.

July 8, 2015) ................................................................................................... 78

Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614 (D. Colo.

2007) ............................................................................................................. 121

CAT3, LLC v. Black Lineage, 14 Civ. 5511, 2016 WL 154116 (S.D.N.Y. Jan.

12, 2016) ....................................................................................................... 198

Chevron Corp. v. Donziger, 11 Civ. 0691, 2013 WL 1087236 (S.D.N.Y. March

15, 2013) ....................................................................................................... 192

Chin v. Port Auth., 685 F.3d 135 (2d Cir. 2012) ...................................... 119, 120

DeGeer v. Gillis, 755 F. Supp. 2d 909 (N.D. Ill. 2010) ...................................... 78

Diepenhorst v. City of Battle Creek, No. 1:05-CV-734, 2006 WL 1851243

(W.D. Mich. June 30, 2006) ........................................................................ 118

Dynamo Holdings Ltd. P’ship v. Comm’r, No. 2685-11, 2014 WL 4636526

(U.S. Tax Ct. Sept. 17, 2014) ................................................................ 118, 120

Federal Housing Finance Agency v. HSBC North America Holdings Inc.,

No. 11 Civ., 2014 WL 584300 (S.D.N.Y. Feb. 14, 2014) ........................... 102

Ford Motor Co. v. Edgewood Props., Inc., 257 F.R.D. 418 (D.N.J. 2009) .... 121

Freedman v. Weatherford Int’l, No. 12 Civ. 2121, 2014 WL 4547039

(S.D.N.Y. Sept. 12, 2014) ............................................................................ 123

Heller v. City of Dallas, 303 F.R.D. 466 (N.D. Tex. 2014)................................ 87

Hopson v. Mayor of Baltimore, 232 F.R.D. 228 (D. Md. 2005) ..................... 149

Hubbard v. Potter, 247 F.R.D. 27 (D.D.C. 2008) ............................................. 124

Hyles v. New York City, 10 Civ. 3119, 2016 WL 4077114 (S.D.N.Y. Aug. 1,

2016) ............................................................................................................. 120

Hynix Semiconductor Inc. v. Rambus Inc., 645 F.3d 1336 (Fed. Cir. 2011)

..................................................................................................................94, 102

200 THE SEDONA CONFERENCE JOURNAL [Vol. 19

In re Dow Corning Corp., 261 F.3d 280 (2d Cir. 2001) .................................. 153

In re Ford Motor Co., 345 F.3d 1315 (11th Cir. 2003) ..................................... 123

In re Honeywell Int’l. Inc. Sec. Litig., 230 F.R.D. 293 (S.D.N.Y. 2003) ......... 124

In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060 (N.D. Cal. 2006)

......................................................................................................................... 97

Kissing Camels Surgery Ctr., LLC v. Centura Health Corp., No. 12-cv-

03012, 2016 WL 277721 (D. Colo. Jan. 22, 2016) ...................................... 184

Kleen Prods, LLC v. Packaging Corp. of Am., No. 10 C 5711, 2012 WL

4498465 (N.D. Ill. Sept. 28, 2012) ............................................................... 120

Kleen Prods. LLC et al v. International Paper et al, Civ. No. 1:10-cv-05711,

Doc. 319, Ex. A (N.D. Ill. May 17, 2012) (Tr. of Proceedings before the

Hon. Nan Nolan) ........................................................................................ 121

Koninklijke Philips N.V. v. Hunt Control Sys., Inc., No. 11-cv-03684, 2014

WL 1494517 (D.N.J. Apr. 16, 2014) ........................................................... 123

Larsen v. Coldwell Banker Real Estate Corp., No. SACV 10-00401, 2012 WL

359466 (C.D. Cal. Feb. 2, 2012) .................................................................. 123

Little Hocking Water Assn., Inc. v. E.I. DuPont de Nemours & Co., No. 2:09-

cv-1081, 2013 WL 608154 (S.D. Ohio Feb. 19, 2013) ............................... 121

Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008)

........................................................................................................ 76, 87, 88, 91

Memory Corp. v. Kent. Oil Tech., No. C04-03843, 2007 WL 832937 (N.D.

Cal. Mar. 19, 2007) ...................................................................................... 124

Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311 (Fed. Cir. 2011) .........94, 102

Murphy Oil USA, Inc. v. Fluor Daniel, Inc., No. Civ. A. 99-3564, 2002 WL

246439 (E.D. La. Feb. 19, 2002) .................................................................. 153

National Jewish Health v. WedbMD Health Servs. Grp., 305 F.R.D. 247 (D.

Colo. 2014) ................................................................................................... 184

Orbit One Commc’ns, Inc. v. Numerex Corp., 271 F.R.D. 429 (S.D.N.Y. 2010)

....................................................................................................................... 136

Orillaneda v. French Culinary Inst., No. 07 Civ. 3206, 2011 WL 4375365

(S.D.N.Y. Sept. 19, 2011) ............................................................................ 124

Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685

F. Supp. 2d 456 (S.D.N.Y. 2010) ................................................................ 103

Quinby v. WestLB AG, 245 F.R.D. 94 (S.D.N.Y. 2006) .................................. 137

Rio Tinto PLC v. Vale S.A., 2015 WL 872294 (S.D.N.Y. Mar. 2, 2015) ........ 120

Romero v. Allstate Ins., 271 F.R.D. 96 (E.D. Pa. 2010) ..................................... 78

2018] THE SEDONA PRINCIPLES,THIRD EDITION 201

Ruiz-Bueno v. Scott, No. 2:12-cv-0809, 2013 WL 6055402 (S.D. Ohio Nov. 15,

2013) ............................................................................................................... 78

Scalera v. Electrograph Sys., Inc., 262 F.R.D. 162 (E.D.N.Y. 2009) .............. 136

SEC v. Strauss, No. 09 Civ. 4150, 2009 WL 3459204 (S.D.N.Y. Oct. 28, 2009)

....................................................................................................................... 128

Steuben Foods, Inc. v. Country Gourmet Foods, LLC, No. 08-CV-561S, 2011

WL 1549450 (W.D.N.Y. 2011) .................................................................... 124

Theofel v. Farey-Jones, 359 F.3d 1066 (9th Cir. 2003) .................................... 132

Treppel v. Biovail Corp., 233 F.R.D. 363 (S.D.N.Y. 2006) ............................. 136

Victor Stanley v Creative Pipe, 269 F.R.D. 497 (D. Md. 2010) ...................... 193

Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008) .... 149

Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) ................ 111

Constitutional Provisions

U.S. CONST. amend. I ......................................................................................... 123

Statutes

18 U.S.C. § 1519 .................................................................................................... 93

18 U.S.C. §§ 2701–2712 ........................................................................................ 98

ABA M

ODEL RULES OF PROF'L CONDUCT ......................................................... 160

ABA M

ODEL RULES OF PROF’L CONDUCT R. 1.1 .............................................. 179

ABA

ODEL RULES OF PROF’L CONDUCT R. 5.1 .............................................. 130

ABA M

ODEL RULES OF PROF'L CONDUCT R. 5.3 .............................................. 130

Cal. St. Bar Standing Comm. On Prof’l Resp. & Cond., Formal Op. No. 2015-

193 (June 30, 2015) ............................................................................... 130, 179

Computer Fraud and Abuse Act, 18 U.S.C. § 1030 ....................................... 133

Stored Communications Act, 18 U.S.C. § 2701 et seq. ................................... 133

Federal Rules

FED.R.CIV. P. 1 ............................................................................................... 31, 97

ED.R.CIV. P. 26(a) ............................................................................................ 118

ED.R.CIV. P. 26(b)(1) .................................................................... 56, 75, 104, 135

ED.R.CIV. P. 26(b)(2)(B) .............................................................................92, 135

ED.R.CIV. P. 26(b)(5)(A) ................................................................................... 81

ED.R.CIV. P. 26(c) ............................................................................................ 135

ED.R.CIV. P. 26(c)(1)(B) ................................................................................... 187

ED.R.CIV. P. 26(d)(2) ......................................................................................... 72

202 THE SEDONA CONFERENCE JOURNAL [Vol. 19

ED.R.CIV. P. 26(f) ............................................................................................. 172

ED.R.CIV. P. 26(f)(3)(C) ..............................................................................88, 125

ED.R.CIV. P. 26(g)(1)(B) .................................................................................... 88

ED.R.CIV. P. 33(b)(1)(A) ................................................................................. 118

ED.R.CIV. P. 34 ................................................................................................. 172

ED.R.CIV. P. 34(b)(2) ....................................................................................... 118

ED.R.CIV. P. 34(b)(2)(C) .................................................................................... 92

ED.R.CIV. P. 34(b)(2)(E)(i) .............................................................................. 182

ED.R.CIV. P. 34(b)(2)(E)(iii) ............................................................................ 184

ED.R.CIV. P. 36(a)(3) ....................................................................................... 118

ED.R.CIV. P. 37 ................................................................................................. 194

ED.R.CIV. P. 37(a)(1) ....................................................................................... 131

ED.R.CIV. P. 37(e) ............................................................................................ 194

ED.R.CIV. P. 45(a)(1)(A)(iii) .............................................................................. 57

ED.R.CIV. P. 45(a)(1)(C) .................................................................................... 89

ED.R.CIV. P. 45(d)(1) .............................................................................. 75, 89, 97

ED.R.CIV. P. 45(d)(2)(B)(ii) ............................................................................. 192

ED. R. CIV. P. 45(e)(1)(B) .................................................................................... 89

ED.R.CIV. P. 45(e)(1)(C) .................................................................................... 89

ED.R.EVID. 502 ................................................................................................... 82

Advisory Committee Notes

1946 Advisory Comm. Note to FED.R.CIV. P. 26 ............................................ 56

1983 Advisory Comm. Note to F

ED.R.CIV. P. 26(g) ..................................... 119

1991 Advisory Comm. Note to F

ED.R.CIV. P. 45 .......................................... 132

1993 Advisory Comm. Note to F

ED.R.CIV. P. 26(b) ....................................... 82

1993 Advisory Comm. Note to F

ED.R.CIV. P. 26(b)(5) ................................. 159

2006 Advisory Comm. Note to F

ED.R.CIV. P. 26 ............................................ 97

2006 Advisory Comm. Note to F

ED.R.CIV. P. 26(b)(2) ................................. 139

2006 Advisory Comm. Note to F

ED.R.CIV. P. 26(b)(2)(B) .............................. 92

2006 Advisory Comm. Note to F

ED.R.CIV. P. 26(f) ........................................ 59

2006 Advisory Comm. Note to F

ED.R.CIV. P. 34 ............................. 57, 128, 180

2010 Advisory Comm. Note to F

ED.R.CIV. P. 26(b)(4) ................................... 85

2015 Advisory Comm. Note to F

ED.R.CIV. P. 1 ........................... 31, 77, 97, 125

2018] THE SEDONA PRINCIPLES,THIRD EDITION 203

2015 Advisory Comm. Note to F

ED.R.CIV. P. 26(b)(1) ............................. 58, 66

2015 Advisory Comm. Note to F

ED.R.CIV. P. 26(c)(1)(B) ............................ 187

2015 Advisory Comm. Note to F

ED.R.CIV. P. 26(d)(2) .................................. 72

2015 Advisory Comm. Note to F

ED.R.CIV. P. 34 ...................................... 89, 90

2015 Advisory Comm. Note to F

ED.R.CIV. P. 37 .......................................... 194

2015 Advisory Comm. Note to F

ED.R.CIV. P. 37(e) .................................95, 193

Advisory Comm. Note to F

ED.R.EVID. 502(b) .............................................. 148

State Rules

ALASKA CIV. R. 26(b)(1) ....................................................................................... 56

EX.R.CIV. P. 196.4 .............................................................................................. 57

The Sedona Conference Publications

The Sedona Conference Glossary: E-Discovery & Digital Information Management

(Fourth Edition),

15 S

EDONA CONF. J. 305 (2014) ................................ passim

The Sedona Conference, Best Practices Commentary on the Use of Search &

Information Retrieval Methods in E-Discovery, 15 S

EDONA CONF. J. 217

(2014) ..................................................................................................... 164, 167

The Sedona Conference, Best Practices Commentary on the Use of Search &

Information Retrieval Methods in E-Discovery,

EDONA CONF. J. 189

(2007) ............................................................................................................ 121

The Sedona Conference, Commentary on Achieving Quality in the E-Discovery

Process, 15 S

EDONA CONF. J. 265 (2013) ...................................................... 88

The Sedona Conference, Commentary on Inactive Information Sources,

SEDONA CONFERENCE (July 2009 Public Comment Version) ................. 116

The Sedona Conference, Commentary on Information Governance, 15 S

EDONA

CONF. J. 125 (2014) ................................................................................ passim

The Sedona Conference, Commentary On Legal Holds: The Trigger & The

Process, 11 S

EDONA CONF. J. 265 (2010) .............................................. passim

The Sedona Conference, Commentary on Non-Party Production & Rule 45

Subpoenas, 9 S

EDONA CONF. J. 197 (2008) ................................................... 97

The Sedona Conference, Commentary on Preservation, Management and

Identification of Sources of Information that are Not Reasonably Accessible, 10

EDONA CONF. J. 281 (2009) ......................................................................... 98

The Sedona Conference, Commentary on Privacy and Information Security:

Principles and Guidelines for Lawyers, Law Firms, and Other Legal Service

Providers, 17 S

EDONA CONF. J. 1 (2016) ...................................... 155, 163, 179

204 THE SEDONA CONFERENCE JOURNAL [Vol. 19

The Sedona Conference, Commentary on Proportionality in Electronic

Discovery, 18 S

EDONA CONF. J. 141 (2017) ........................... 42, 135, 166, 167

The Sedona Conference, Commentary on Protection of Privileged ESI, 17

EDONA CONF. J. 95 (2016) .................................................................. 147, 151

The Sedona Conference, Commentary on Rule 34 and Rule 45 “Possession,

Custody, or Control,” 17 S

EDONA CONF. J. 467 (2016) ........................ passim

The Sedona Conference, Cooperation Proclamation, 10 S

EDONA CONF. J. 331

(2009 Supp.) ................................................................................ 30, 31, 76, 125

The Sedona Conference, Cooperation Proclamation: Resources for the Judiciary,

HE SEDONA CONFERENCE (Dec. 2014 Public Comment Version) .......... 92

The Sedona Conference, Database Principles Addressing the Preservation and

Production of Databases and Database Information in Civil Litigation, 15

EDONA CONF. J. 171 (2014) ........................................................ 103, 122, 176

The Sedona Conference, Practical In-House Approaches for Cross-Border

Discovery & Data Protection, 17 S

EDONA CONF. J. 397 (2016) ........... 155, 163

The Sedona Conference, Primer on Social Media, 14 S

EDONA CONF. J. 191

(2013) .............................................................................................................. 98

The Sedona Conference, The Case for Cooperation, 10 S

EDONA CONF. J. 339

(2009 Supp.) ............................................................................................. 77, 78

The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing

Information & Records in the Electronic Age, T

HE SEDONA CONFERENCE (2d

ed. 2007) ....................................................................................................... 114

The Sedona Principles: Best Practices Recommendations & Principles for

Addressing Electronic Document Production, T

HE SEDONA CONFERENCE

(2d ed. 2007) ................................................................................... 84, 169, 174

Thomas Y. Allman, The Sedona Principles after the Federal Amendments: The

Second Edition (2007), T

HE SEDONA CONFERENCE (2007) .......................... 12

Other Authorities

Bennett B. Borden & Jason R. Baron, Finding the Signal in the Noise:

Information Governance, Analytics and the Future of Legal Practice, 20 R

ICH.

J.L. & T

ECH. 7 (2014) ................................................................................... 166

OMM. ON RULES OF PRACTICE AND PROCEDURE, REPORT OF JUDICIAL CONF.

CHIEF JUSTICE (Sept. 2014) ...................................................................... 56

George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System

Adapt?,13 R

ICH. J.L. & TECH. 10 (2007) .................................................... 166

2018] THE SEDONA PRINCIPLES,THIRD EDITION 205

Hon. Elizabeth J. Laporte & Jonathan M. Redgrave, A Practical Guide for

Achieving Proportionality Under New Federal Rule of Civil Procedure 26, 9

ED.CTS.L.REV. 19 (2015) ........................................................................... 67

Hon. James C. Francis IV, Judicial Modesty: The Case for Jurist Restraint in the

New Electronic Age, L

AW TECH.NEWS (Feb. 2013) ................................... 119

OHN G. ROBERTS,JR., 2015 YEAR-END REPORT ON THE FEDERAL JUDICIARY

(Dec. 31, 2015) ............................................................................................... 66

John M. Facciola & Jonathan M. Redgrave, Asserting and Challenging

Privilege Claims in Modern Litigation: The Facciola-Redgrave Framework, 4

ED.CTS.L.REV. 19 (2009) ........................................................................... 82

Kara A. Schiermeyer, The Artful Dodger: Responding Parties’ Ability to Avoid

Electronic Discovery Costs Under 26(b)(2)(b) and 26(b)(2)(c) and the

Preservation Obligation, 42 C

REIGHTON L. REV. 227 (2009) ...................... 137

LTPI Model Stipulated Production Specifications, L

EGAL TECHNOLOGY

PROFESSIONALS INSTITUTE ........................................................................... 183

Maura R. Grossman & Gordon V. Cormack, Comments on “The Implication of

Rule 26(g) on the Use of Technology-Assisted Review,” 7 F

ED.CTS.L.REV.

285 (2014) ..................................................................................................... 166

Ralph C. Losey, Hash: The New Bates Stamp, 12 J. T

ECH.L.&POL. 1 (June

2007) ............................................................................................................. 178

Seventh Circuit Electronic Discovery Pilot Program, Model Standing Order

(Rev. May 11, 2011) ...................................................................................... 58

Seventh Circuit Electronic Discovery Pilot Program, Principles Relating to the

Discovery of Electronically Stored Information (Rev. Aug. 1, 2010) ...... 58, 76

UMMARY OF THE REPORT OF THE JUDICIAL CONFERENCE,COMMITTEE ON

RULES OF PRACTICE AND PROCEDURE (Sept. 2005) ................................... 116

Thomas L. Friedman, Dancing in a Hurricane,

N.Y. T

IMES, Nov. 19, 2016 .... 28

United States District Court for the Northern District of California,

Guidelines for the Discovery of Electronic Information (Rev. Dec. 1, 2015)

......................................................................................................................... 77

206 THE SEDONA CONFERENCE JOURNAL [Vol. 19

APPENDIX B: DISCOVERY IN A WORLD OF ELECTRONIC

DOCUMENTS AND DATA—2007

162

How is Discovery of Electronically Stored Information Differ-

ent from Discovery of Paper Documents?

The answer to the question—”why and how is electronic dis-

covery different?”—lies in the subtle, but sometimes profound,

ways in which electronic documents present unique opportuni-

ties and problems for document production. Magistrate Judge

Nan Nolan noted some of these differences in Byers v. Illinois

State Police, 53 Fed. R. Serv. 3d 740, No. 99 C 8105, 2002 WL

1264004 (N.D. Ill. May 31, 2002):

ȱęǰȱȱ-mails, are discovera-

ble. . . . However, the Court is not persuaded by

the plaintiffs’ attempt to equate traditional paper-

based discovery with the discovery of e-mail

ęles. . . . Chief among these differences is the sheer

volume of electronic information. E-mails have re-

placed other forms of communication besides just

paper-based communication. Many informal mes-

sages that were previously relayed by telephone

or at the water cooler are now sent via e-mail. Ad-

ditionally, computers have the ability to capture

several copies (or drafts) of the same e-mail, thus

multiplying the volume of documents. All of these

162. Excerpted and adapted from the Introduction to the Second Edition of

The Sedona Principles (2007) with permission from The Sedona Conference.

As noted in the Introduction to The Sedona Principles, Third Edition, technol-

ogy has moved quickly, and some of the points in this Appendix may seem

quaint as well as outdated. For one new to electronic discovery, however, the

points should provide a helpful orientation to the differences from past ex-

perience. The editors have changed citation styles within this excerpt for pur-

poses of consistency and clarity. Footnote numbering in this excerpt does not

reflect the original numbering.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 207

e-mails must be scanned for both relevance and

privilege. Also, unlike most paper-based discov-

ery, archived e-mails typically lack a coherent

ęling system. Moreover, dated archival systems

commonly store information on magnetic tapes

which have become obsolete. Thus, parties incur

additional costs in translating the data from the

tapes into useable form.

Id. at *31–33.

The qualitative and quantitative differences between pro-

ducing paper documents and electronic information can be

grouped into the following six broad categories.

A. Volume and Duplicability

There is substantially more electronically stored information

than paper documents, and electronically stored information is

created and replicated at much greater rates than paper docu-

ments.

The dramatic increase in e-ȱȱȱȱęȱȬ

eration poses particular problems for large data producers, both

public and private. A single large corporation can generate and

ȱȱȱȱȱȱęȱȱ¢ǯȱȱ¢ȱ

high percentage of information essential to the operation of pub-

lic and private enterprises is stored in electronic format and

never printed to paper. Not surprisingly, the proliferation of the

use of electronically stored information has resulted in vast in-

formation accumulations. While a few thousand paper docu-

ȱȱȱȱęȱȱęȱǰȱȱȱȱȱȱ

disk drive the size of a small book can hold the equivalent of

millions of printed pages. Organizations often accumulate thou-

sands of such tapes as data is stored, transmitted, copied, repli-

cated, backed up, and archived.

208 THE SEDONA CONFERENCE JOURNAL [Vol. 19

Electronic information is subject to rapid and large-scale

user-created and automated replication without degradation of

the data. Email provides a good example. Email users fre-

quently send the same email to many recipients. These recipi-

ents, in turn, often forward the message, and so on. At the same

time, email software and the systems used to transmit the mes-

sages automatically create multiple copies as the messages are

sent and resent. Similarly, other business applications are de-

signed to periodically and automatically make copies of data.

Examples of these include web pages that are automatically

ȱȱȱęȱȱęȱȱȱȱ¢ȱȱȱȱ

protect against inadvertent deletion or system failure.

163

B. Persistence

¢ȱȱȱȱȱęȱȱȱ

of than paper documents. A shredded paper document is essen-

tially irretrievable.

164

Likewise, a paper document that has been

discarded and taken off the premises for disposal as trash is gen-

erally considered to be beyond recovery. Disposal of electroni-

cally stored information is another matter altogether. The term

“deleted” is misleading in the context of electronic data, because

ȱȱȱȱȱȃ¢ǯȄȱ¢ǰȱȃȄȱȱęȱ

163. Neither the users who created the data nor information technology

personnel are necessarily aware of the existence and locations of the copies.

ȱǰȱȱȱȱęȱ¢ȱȱ¢ȱȱȱȬ

ual’s hard drive, in a network-shared folder, as an attachment to an email, on

a backup tape, in an internet cache, and on portable media such as a CD or

Ě¢ȱǯȱǰȱȱȱȱȱȱęȱ¢¢ȱ

is determined not by their substantive content, but by the software with

which they were created, making organized retention and review of those

ȱęǯ

164. Modern technology, however, has made recovery at least a theoretical

possibility. See Douglas Heingartner, Back Together Again, N.Y.

IMES, July 17,

2003, at G1 (describing technology that can reconstruct cross-shredded paper

documents).

2018] THE SEDONA PRINCIPLES,THIRD EDITION 209

does not actually erase the data from the computer’s storage de-

ǯȱǰȱȱ¢ȱęnds the data’s entry in the disk direc-

tory and changes it to a “not used” status—thus permitting the

computer to write over the “deleted” data. Until the computer

writes over the “deleted” data, however, it may be recovered by

searching the disk itself rather than the disk’s directory. This

persistence of electronic data compounds the rate at which elec-

tronic data accumulates and creates an entire subset of electron-

ically stored information that exists unknown to most individu-

als with ostensible custody and ostensible control over it.

C. Dynamic, Changeable Content

Computer information, unlike paper, has content that is de-

signed to change over time even without human intervention.

¡ȱǱȱĚȱ¢ȱȱ¢ȱȱ

ęles and transfer data from one location to another; backup ap-

plications that move data from one storage area to another to

function properly; web pages that are constantly updated with

information fed from other applications; and email systems that

reorganize and purge data automatically. As a result, unlike pa-

per documents, much electronically stored information is not

ę¡ȱȱȱęȱǯ

More generally, electronically stored information is more

easily and more thoroughly changeable than paper documents.

Electronically storeȱȱȱȱęȱȱȱ

¢ȱȱ ȱȱ ęȱ ȱȱȱ ȱ

forensic techniques. Moreover, the act of merely accessing or

moving electronic data can change it. For example, booting up

a computer may alter data contained on it. Simply moving a

ȱȱęȱȱȱȱȱȱ¢ȱȱ

ȱȱęȱȱȱȱȱǯȱȱȬ

tion, earlier drafts of documents may be retained without the

user’s knowledge.

210 THE SEDONA CONFERENCE JOURNAL [Vol. 19

D. Metadata

A large amount of electronically stored information, unlike

paper, is associated with or contains information that is not

readily apparent on the screen view of the file. This additional

information is usually known as “metadata.” Metadata includes

information about the document or file that is recorded by the

computer to assist in storing and retrieving the document or file.

The information may also be useful for system administration

ȱȱĚȱȱȱȱǰȱǰȱǰȱ

and storage of the document or file within the computer system.

Much metadata is not normally accessible to the computer user.

There are many examples of metadata. Such information in-

ȱęȱǰȱȱȱȱǰȱǰȱȬ

ments, and edit history. Indeed, elecȱ ęȱ ¢ȱ ȱ

hundreds or even thousands of pieces of such information. For

instance, email has its own metadata elements that include,

among about 1,200 or more properties, such information as the

dates that mail was sent, received, replied to or forwarded, blind

carbon copy (“bcc”) information, and sender address book in-

formation. Typical word processing documents not only in-

clude prior changes and edits but also hidden codes that deter-

mine such features as paragraphing, font, and line spacing. The

ability to recall inadvertently deleted information is another fa-

ȱǰȱȱȱȱȱȱȱęȱǯ

Similarly, electronically created spreadsheets may contain

calculations that are not visible in a printed version or hidden

columns that can only be viewed by accessing the spreadsheet

in its “native” application, that is, the software application used

to create or record the information. Internet documents contain

hidden data that allow for the transmission of information be-

tween an internet user’s computer and the server on which the

internet document is located. So-called “meta-tags” allow

ȱȱȱȱȱȱȱęȱȱ

2018] THE SEDONA PRINCIPLES,THIRD EDITION 211

criteria. “Cookies” are text files placed on a computer (some-

times without user knowledge) that can, among other things,

track usage and transmit information back to the cookie’s origi-

nator.

165

Generally, the metadata associated with files used by most

people today (such as Microsoft Office™ documents) is known

as “application metadata.” This metadata is embedded in the

file it describes and moves with the file when it is moved or cop-

ied. On the other hand, “system metadata” is not embedded

within the file it describes but stored externally. System

metadata is used by the computer’s file system to track file loca-

tions and store information about each file’s name, size, crea-

tion, modification, and usage.

Understanding when metadata is relevant and needs to be

preserved and produced represents one of the biggest chal-

lenges in electronic discovery. Sometimes metadata is needed to

authenticate a disputed document or to establish facts material

to a dispute, such as when a file was accessed in a suit involving

theft of trade secrets. In most cases, however, the metadata will

have no material evidentiary value—it does not matter when a

document was printed, or who typed the revisions, or what ed-

its were made before the document was circulated. There is also

the real danger that information recorded by the computer as

application metadata may be inaccurate. For example, when a

new employee uses a word processing program to create a

memorandum by using a memorandum template created by a

former employee, the metadata for the new memorandum may

165. There is much confusion over the use of terms, and distinctions be-

tween application and system metadata can be confusing. See Craig Ball, Un-

derstanding Metadata: Knowing Metadata’s Different Forms and Evidentiary Sig-

nificance Is Now an Essential Skill for Litigators, 13 L

AW TECH.NEWS 36 (Jan.

2006).

212 THE SEDONA CONFERENCE JOURNAL [Vol. 19

incorrectly identify the former employee as the author. How-

ever, the proper use of metadata in litigation may be able to pro-

vide substantial benefit by facilitating more effective and effi-

cient searching and retrieval of electronically stored

information.

E. Environment-Dependence and Obsolescence

Electronic data, unlike paper data, may be incomprehensible

when separated from its environment.

166

For example, the infor-

mation in a database may be incomprehensible when removed

from the structure in which it was created. If the raw data (with-

out the underlying structure) in a database is produced, it will

ȱ ȱ ¢ȱ ȱ ȱ ȱ ȱ ęȱ ǯȱ ȱ ȱ

sense of the data, a viewer needs the context, including labels,

columns, report formats, and similar information. Report for-

mats, in particular, allow understandable, useable information

to be produced without producing the entire database. Simi-

larly, stripping metadata and embedded data from the data files

such as spreadsheets can substantially impair the functionality

of the file and the accuracy of the production as a fair represen-

tation of the file as kept and used in the ordinary course of busi-

ness.

Also, it is not unusual for an organization to undergo several

migrations of data to different platforms within a few years. Be-

cause of rapid changes in computer technology, neither the per-

sonnel familiar with the obsolete systems nor the technological

infrastructure necessary to restore the out-of-date systems may

be available when this “legacy” data needs to be accessed. In a

perfect world, electronically stored information that has contin-

166. In addition, passwords, encryption, and other security features can

limit the ability of users to access electronic documents.

2018] THE SEDONA PRINCIPLES,THIRD EDITION 213

uing value for business purposes or litigation would be con-

verted for use in successor systems, and all other data would be

ǯȱȱ¢ǰȱȱȱȱ¢ȱĚǯ

F. Dispersion and Searchability

While a user’s paper documents will often be consolidated

ȱȱȱȱ¡ȱȱęȱǰȱȱȂȱ¢ȱ

stored information may reside in numerous locations—desktop

ȱǰȱȱǰȱȱǰȱĚ¢ȱǰȱ

flash drives, CD-ROMs, DVDs, and backup tapes. Many of these

electronic documents may be identical backup copies or archive

copies. However, some documents may be earlier versions

drafted by that user or by other users who can access those doc-

uments through a shared electronic environment.

¢ǰȱ ȱ ¢ȱ ȱ ȱ ęȱ ȱ ȱ ȱ

provenance of electronically stored information than paper doc-

uments. The ease of transmitting electronic data and the routine

ęȱ ȱ -user editing process may obscure the

ǰȱǰȱȱ¢ȱȱȱǯȱȱęȱ

are often stored in shared network folders that may have de-

partmental or functional designations rather than author infor-

mation. In addition, there is growing use of collaborative soft-

ware that allows for group editing of electronic data, making

ȱȱȱęǯȱ¢ǰȱȱȬ

ically stored information may be stored on a location, such as a

local hard drive, it is likely that such documents may also be

found on high-capacity, undifferentiated backup tapes, or on

network servers—not under the custodianship of an individual

who may have “created” the document.

While the dispersed nature of electronically stored infor-

mation complicates discovery, the fact that many forms of elec-

tronically stored information and media can be searched

quickly and accurately by automated methods provides new ef-

ficiencies and economies. In many instances, software is able to

214 THE SEDONA CONFERENCE JOURNAL [Vol. 19

search through far greater volumes of these types of electroni-

cally stored information than human beings could review man-

ually.