In September, the Sedona Conference released the public comment version of its Commentary on Defense of Process: Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process. Acknowledging the complexity of eDiscovery given today’s data volumes and emerging technologies, the Commentary sets forth 13 principles designed “to reduce the cost and burden typically associated with modern discovery by helping litigants prepare for—or better yet, avoid altogether—challenges to their chosen discovery processes, and by providing guidance to the courts in the (ideally) rare instances in which they are called upon to examine a party’s discovery conduct.” In brief, the Principles do not require perfection; rather, they are designed to encourage parties to thoughtfully design a comprehensive eDiscovery strategy with an eye to greater defensibility.
Below is a summary of the Principles:
- Principle 1. An eDiscovery process is not required to be perfect, or even the best available, but it should
be reasonable under the circumstances. When evaluating the reasonableness of an e-discovery process,
parties and the court should consider issues of proportionality, including the benefits and burdens of a particular process.
- Principle 2. An eDiscovery process should be developed and implemented by a responding party after reasonable due diligence, including consultation with persons with subject-matter expertise, and technical knowledge and competence.
- Principle 3. Responding parties are best situated to evaluate and select the procedures, methodologies, and technologies for their e-discovery process.
- Principle 4. Parties may reduce or eliminate the likelihood of formal discovery or expensive and time-consuming motion practice about an e-discovery process by conferring and exchanging non-privilege information about that process.
- Principle 5. When developing and implementing an eDiscovery process, a responding party should consider how it would demonstrate the reasonableness of its process if required to do so. Documentation of significant decisions made during eDiscovery may be helpful in demonstrating that the process was reasonable.
- Principle 6. An eDiscovery process should include reasonable validation.
- Principle 7. A reasonable eDiscovery process may use search terms and other culling methods to remove ESI that is duplicative, cumulative, or not reasonably likely to contain information within the scope of discovery.
- Principle 8. A review process can be reasonable even if it does not include manual review of all potentially responsive ESI.
- Principle 9. Technology-assisted review should be held to the same standard of reasonableness as any other eDiscovery process.
- Principle 10. A party may use any reasonable process, including a technology-assisted process, to identify
and withhold privileged or otherwise protected information. A party should not be required to use any process that does not adequately protect its rights to withhold privileged or otherwise protected information from production.
- Principle 11. Whenever possible, a dispute about an eDiscovery process should be timely resolved through informal mechanisms, such as mediation between the parties and conferences with the court, rather than through formal motion practice and hearings.
- Principle 12. A party should not be required to provide discovery about its eDiscovery process without
- Principle 13. The court should not decide a motion regarding the adequacy of an eDiscovery process without a sufficient factual record. In many instances, such a motion may not be ripe for determination before there has been substantial or complete production.
These Principles underscore the importance of securing assistance from an eDiscovery expert. While the Commentary acknowledges that all discovery processes are likely to be imperfect, organizations and their counsel should consult with a seasoned professional to determine whether their proposed discovery strategy is reasonable, proportional, and defensible. Third-party eDiscovery specialists can ensure a thorough due diligence process, inform the choice of analytics tools and technology that can reduce data to a manageable level, and create a thorough audit trail. Furthermore, they can ensure that parties and their legal teams adhere to these sound Principles, meet their ethical duty of technical competence, and begin discovery with the end—defensibility—in mind.