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Sedona Conference

Sedona Conference Commentary on Proportionality, Third Edition: eDiscovery Trends

Within the first two months of this blog, way back in 2010, we posted a blog post about the original Commentary on Proportionality in Electronic Discovery from The Sedona Conference® (TSC), which is a project of The Sedona Conference Working Group on Electronic Document Retention & Production (WG1).  Now, the third iteration of the Commentary has just been published.

WG1 commissioned a diverse drafting team in 2015 to study the changes to the Federal Rules of Civil Procedure and collaborate on an update to the Commentary that would reflect “the significant and evolving emphasis on proportionality” under the 2015 amendments. The Commentary delineates reasonable guidance on the application of proportionality standards that should enable common sense discovery practices and further the objective of the rules.

The public comment version of this third iteration of the Commentary was published in November 2016. Numerous comments were received by the close of the public comment period on January 31, 2017 and, where appropriate, were incorporated into the final version.

The core of the Commentary are the six Principles of Proportionality intended to provide a framework for the application of the doctrine of proportionality to all aspects of electronic discovery. These common-sense principles are (content in blue is changed since the original version, which we covered here):

  1. The burdens and costs of preservation of potentially relevant information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation.
  2. Discovery should focus on the needs of the case and generally be obtained from the most convenient, least burdensome, and least expensive sources.
  3. Undue burden, expense, or delay resulting from a party’s action or inaction should be weighed against that party.
  4. The application of proportionality should be based on information rather than speculation.
  5. Nonmonetary factors should be considered when evaluating the burdens and benefits of discovery.
  6. Technologies to reduce cost and burden should be considered in the proportionality analysis.

The amendments to Rules 26(b)(1) and 37(e) in December 2015 were intended to modify how civil litigation is handled going forward. The committee notes made clear the increased emphasis on the role of proportionality in discovery. The practical ramifications of including the proportionality factors in the scope of discovery are evolving and many questions remain concerning how practitioners and judges will adjust. Those questions became the main drivers behind the initiative to revisit, and ultimately publish, the Third Edition of the Commentary.

The prepublication edition of The Sedona Conference Commentary on Proportionality in Electronic Discovery is available for download here.

So, what do you think?  Have you encountered any cases where proportionality of discovery requests are at issue? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The Sedona Principles Has Been Around Longer Than You May Realize: eDiscovery Best Practices

It has been close to fifteen years since the original public comment draft of The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production was released.  Even the second edition of The Sedona Principles was published all the way back in 2007 – that’s before the iPhone was even commercially available!  Now, after almost ten years, the public comment version of the Third Edition has now been released.

The Public Comment Version of The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production is a project of The Sedona Conference© (TSC) Working Group on Electronic Document Retention and Production (WG1). The Sedona Principles, first released in 2002, was the first publication for the Sedona Conference Working Group Series and the flagship publication for WG1.

According to their email introducing the new edition of The Sedona Principles, it “reflects many of [the changes over the past ten years], and integrates the more advanced and detailed analysis developed by WG1 during this interim, found in such publications as the 2008 Sedona Conference Cooperation Proclamation, the 2010 Commentary on Legal Holds, the 2014 Commentary on Information Governance, the 2015 Commentary on Protection of Privileged ESI, and the 2016 Commentary on Proportionality in Electronic Discovery.”  It also “follows the further amendments to the Federal Rules of Civil Procedure that went into effect in December 2015.”

Significant changes in the Third Edition include:

  • Updates to the commentary associated with Principle 5, consistent with recent case law on the scope of the duty of preservation
  • Reworking of Principle 8 and its associated commentary, relating accessibility of ESI to proportionality considerations
  • Substantial revision and expansion of Principle 12 and its commentary on forms of production, due to the proliferation of a variety of new ESI sources and types

The 133 page PDF file includes a history of The Sedona Principles, 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, the fourteen principles themselves and detailed Commentaries to the principles 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 Principles, as well as any notable exceptions.  It also includes an In Memoriam section to remember the contributions of Richard Braman and Bill Butterfield to TSC.

A list of the fourteen principles is found on pages 32 and 33 of the PDF file (pages 15 and 16 of the primary document) and they reflect ideals that all litigants should strive to meet in their eDiscovery efforts.  In fact, in our webcast yesterday, we referenced Principle 6 when we discussed the Hyles case ruling by Judge Peck and have certainly referenced other principles over the years in this blog.

To download The Sedona Principles, Third Edition (or any of the editions, for that matter) click here.  The public comment period closes on June 30, 2017 and questions and comments regarding The Sedona Principles, Third Edition may be sent to comments@sedonaconference.org.  TSC also plans to announce (sometime in April) a 90-minute webinar where members of the drafting team review the principles, answer questions, and take comments.

So, what do you think?  Are you familiar with The Sedona Principles?  Here’s a good opportunity to become familiar with them!  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Public Comment Period Extended for Commentary on Defense of Process: eDiscovery Best Practices

As we noted a couple of months ago, The Sedona Conference® Working Group on Electronic Document Retention and Production (WG1) has issued a Public Comment Version of a new Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process.  The deadline for public comment was to have ended a couple of days ago, on November 15.  Now, the deadline for public comment has been extended by the WG1 steering committee.

The new deadline for the public comment period for the Commentary is Monday, November 28.

As noted in the Preface, the Commentary “represents the culmination of five years of spirited dialogue within WG1 on a number of sensitive topics that go to the heart of what it means to be a competent advocate and officer of the court in an age of increasing technological complexity. It addresses the tension between the principle of party-controlled discovery, and the need for accountability in the discovery process, by establishing a series of reasonable expectations and by providing practical guidance to meet these competing interests. The overriding goal of the principles and guidelines set forth in this Commentary is 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.”

The WG1 steering committee gave no reason for the extension in its email announcement.  Perhaps they are receiving a lot of comments, which shows that a lot of people have taken interest in the Commentary.  If so, that’s good.

As usual, the Commentary is free and you can download it here.  Questions and comments regarding the Commentary may be sent to comments@sedonaconference.org.

So, what do you think?  Will these new principles help organizations implement a sound eDiscovery process?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

It Took a While, But the Sedona Conference Has Finalized its Guide for “Possession, Custody, or Control” of ESI: eDiscovery Best Practices

A year ago in April (i.e. April 2015), The Sedona Conference® released a new public comment version of a guide designed to provide guidance to defining the phrase “possession, custody, or control” as it’s used in Federal Rules 34 and 45 (we covered it here).  Earlier this month, the final version of that guide was released.

As we noted then, Rule 34(a) and Rule 45(a) obligate a party responding to a document request or subpoena to produce “documents, electronically stored information, and tangible things” in that party’s possession, custody, or control.  But, the Rules are silent on what the phrase “possession, custody, or control” means and case law is inconsistent (across circuits and even within circuits at times).  And, determining whether ESI should be considered to be in a responding party’s “possession, custody, or control” has become more complex, with the growing popularity of technologies and trends such as social media and cloud computing.

So, The Sedona Conference Commentary on Rule 34 and Rule 45 Possession, Custody, or Control was created to provide practical, uniform and defensible guidelines regarding when a responding party should be deemed to have “possession, custody, or control” of documents and all forms of electronically stored information (ESI) subject to Rule 34 and Rule 45 requests for production.  A secondary purpose of the Commentary is to advocate abolishing use of the common-law “practical ability test” for purposes of determining Rule 34 and Rule 45 “control” of ESI, which has led to “inequitable” situations in which courts have held that a party has Rule 34 “control” of Documents and ESI even though the party did not have the actual ability to obtain the Documents and ESI.

The final 103 page PDF guide includes the following actual principles (minimally changed from the public comment version).  They are:

  • Principle 1: A responding party will be deemed to be in Rule 34 or Rule 45 “possession, custody, or control” of Documents and ESI when that party has actual possession or the legal right to obtain and produce the Documents and ESI on demand.
  • Principle 2: The party opposing the preservation or production of specifically requested Documents and ESI claimed to be outside its control, generally bears the burden of proving that it does not have actual possession or the legal right to obtain the requested Documents and ESI.
  • Principle 3(a): When a challenge is raised about whether a responding party has Rule 34 or Rule 45 “possession, custody, or control” over Documents and ESI, the Court should apply modified “business judgment rule” factors that, if met, would allow certain, rebuttable presumptions in favor of the responding party.
  • Principle 3(b): In order to overcome the presumptions of the modified business judgment rule, the requesting party bears the burden to show that the responding party’s decisions concerning the location, format, media, hosting, and access to Documents and ESI lacked a good faith basis and were not reasonably related to the responding party’s legitimate business interests.
  • Principle 4: Rule 34 and Rule 45 notions of “possession, custody, or control” should never be construed to override conflicting state or federal privacy or other statutory obligations, including foreign data protection laws.
  • Principle 5: If a party responding to a specifically tailored request for Documents or ESI (either prior to or during litigation), does not have actual possession or the legal right to obtain the Documents or ESI that are specifically requested by their adversary because they are in the “possession, custody, or control” of a third party, it should, in a reasonably timely manner, so notify the requesting party to enable the requesting party to obtain the Documents or ESI from the third party. If the responding party so notifies the requesting party, absent extraordinary circumstances, the responding party should not be sanctioned or otherwise held liable for the third party’s failure to preserve the Documents or ESI.

One change from the public comment version was to replace the word “trump” with “override”.  Hmmm, wonder why?  :o)

The remainder of the guide covers 1) the background that led to the new principles, including inconsistent interpretations of “possession, custody, or control” within the Rules, a deeper look at the “practical ability test” and effect of new technologies on the analysis and 2) a detailed look at each of the new principles with commentary.  They dropped the Appendix with case law where “possession, custody, or control” was at issue.

As usual, the Commentary is free and you can download it (both the Final and the Public Comment versions) here.

So, what do you think?  Will these new principles lead to a consistent application of “possession, custody, or control” within the courts?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The Sedona Conference Provides Guidance for Protection of Privileged ESI: eDiscovery Best Practices

As volumes of electronically stored information (ESI) stored in the world doubles every 1.2 years, it becomes more challenging to identify the ESI that is subject to a claim of attorney-client privilege or work product protection and log and exclude that ESI from production.  Federal Rule of Evidence 502 was intended to address waiver of such privilege claims and reduce the discovery costs, but many attorneys and judges don’t realize the protections the rule offers.  Now, The Sedona Conference® has issued a new final commentary to “breathe some needed life” into the understanding and use of Rule 502.

Last week, Working Group 1 of The Sedona Conference, announced the final release of The Sedona Conference Commentary on Protection of Privileged ESI, which reflects changes made after release of the public comment version in November 2014.

The Commentary attempts to “breathe some needed life” into the understanding and use of Rule 502 by:

  1. Reminding counsel of the basics of the law on privilege in the context of modern document productions;
  2. Encouraging parties, lawyers, and the courts to consider employing Rule 502(d)-type orders in every complex civil matter;
  3. Articulating a “safe harbor” presumption that protects parties from claims of waiver in connection with the inadvertent production of privileged materials, provided that there is adherence to certain basic best practices in the context of ESI privilege review;
  4. Encouraging cooperation among litigants to lower the cost and burden of identifying privileged information; and
  5. Identifying protocols, processes, tools, and techniques that can be used to limit the costs associated with identifying and logging privileged material, and avoiding or resolving disputes relating to the assertion of privileges.

The 64 page Commentary covers the four Principles on Protection of Privileged ESI, which are as follows:

  • Principle 1: Parties and their counsel should undertake to understand the law of privilege and its appropriate application in the context of electronically stored information.
  • Principle 2: Parties, counsel, and courts should make use of Federal Rule of Evidence 502(d) and its state analogues.
  • Principle 3: Parties and their counsel should follow reasonable procedures to avoid the inadvertent production of privileged information.
  • Principle 4: Parties and their counsel should make use of protocols, processes, tools, and technologies to reduce the costs and burdens associated with the identification, logging, and dispute resolution relating to the assertion of privilege.

The Commentary also provides appendices that include an Explanatory Note on Evidence Rule 502 Prepared by the Judicial Conference Advisory Committee on Evidence Rules, two model Rule 502(d) orders (including the one we previously discussed here from Hon. Andrew J. Peck (S.D.N.Y.)) and state law analogues of Federal Rule 502 adopted by several states.

You can download the Commentary here.  Consider it an early Christmas present from The Sedona Conference!

So, what do you think? Do you use 502(d) orders in your cases?  If not, why not?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

It Was Only a Matter of Time Before The Sedona Conference Weighed in on Privacy and Security: eDiscovery Best Practices

When we started this blog over five years ago, privacy and security wasn’t the big topic it is today.  Now, there seems to be a story about a data breach practically every day and privacy is a big issue, especially internationally.  Thankfully, The Sedona Conference® has created a guide to help with this growing issue.

The Sedona Conference Working Group on Electronic Document Retention and Production (WG1) has just rolled out the final release of its new Commentary on Privacy and Information Security: Principles and Guidelines for Lawyers, Law Firms, and Other Legal Service Providers.  As the name implies, it’s a guide for all of us!  I say “final release” because they already rolled out the public comment version back in July and this new guide reflects changes resulting from comments received.  The original public comment version of the Commentary was published in July after more than two years of dialogue, review, and revision, including discussion at several working group meetings.

The Commentary is divided into several sections, including:

  • Section I: A brief Introduction and statement of Principles;
  • Section II: Identifies some of the major sources of a provider’s duty to protect private and confidential information;
  • Section III: Describes a process by which legal service providers may conduct thorough security risk assessments, taking into account the information they possess, the vulnerability of that information to unauthorized disclosures, breaches, loss, or theft, and the way in which each provider may mitigate those threats by adopting a structured or layered approach to protect private and confidential information; and
  • Section IV: Delves into various policies and practices that can address privacy and information security, setting forth processes that can be scaled to the needs and circumstances of an individual legal service provider.

The guide also includes appendices that discuss privacy and security in the Health Care and Financial Services industries.

Of course, the heart of any Sedona Conference guide is its principles – here are the seven principles stated in this guide:

  • Principle 1: Legal service providers should develop and maintain appropriate knowledge of applicable legal authority including statutes, regulations, rules, and contractual obligations in order to identify, protect, and secure private and confidential information.
  • Principle 2: Legal service providers should periodically conduct a risk assessment of information within their possession, custody, or control that considers its sensitivity, vulnerability, and the harm that would result from its loss or disclosure.
  • Principle 3: After completing a risk assessment, legal service providers should develop and implement reasonable and appropriate policies and practices to mitigate the risks identified in the risk assessment.
  • Principle 4: Legal service providers’ policies and practices should address privacy and security in reasonably foreseeable circumstances, and reasonably anticipate the possibility of an unauthorized disclosure, breach, loss, or theft of private or confidential information.
  • Principle 5: Legal service providers’ privacy and information security policies and practices should apply to, and include, regular training for their officers, managers, employees, and relevant contractors.
  • Principle 6: Legal service providers should monitor their practices for compliance with privacy and security policies.
  • Principle 7: Legal service providers should periodically reassess risks and update their privacy and information security policies and practices to address changing circumstances.

Hopefully, these principles will influence providers of legal services to improve their own privacy and security practices.  The PDF guide can be downloaded here and, as always, it’s free!

So, what do you think?  Do you plan to adopt these principles and guidelines for managing security and privacy within your organization?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Need Help with Cross Border Discovery? The Sedona Conference Has a New Guide for You!: eDiscovery Best Practices

Cross-border discovery presents a growing challenge for courts, privacy authorities, companies, employees, counsel, and requesting parties.  Discovery and Data Protection Laws vary widely around the world, and these laws may conflict.  Foreign countries have differing notions of privacy and discovery than we do here in the US.  Now, The Sedona Conference® has created a guide of practical in-house approaches to help.

The Sedona Conference Working Group 6 on International Electronic Information Management, Discovery and Disclosure (WG6) – the Working Group responsible for The Sedona Conference International Principles on Discovery, Disclosure and Data Protection (“International Litigation Principles”), has released for public comment a new guide titled Practical In-House Approaches for Cross-Border Discovery and Data Protection (“Practical Approaches”).

In order to maximize the value of the International Litigation Principles for organizations and in-house counsel, WG6 has drafted Practical Approaches to provide consensus-based practical guidance and solutions for the cross-border data transfer and discovery challenges that many organizations and in-house counsel regularly confront.  The 49 page guide (which includes extensive appendices) includes the following sections:

  • In-House Perspectives on Discovery and Data Protection: Describes the differing notions of privacy and discovery that exist around the world today;
  • The Sedona Conference International Principles on Discovery, Disclosure & Data Protection: Recap of the six international principles originally introduced in the International Litigation Principles Guide;
  • Practice Points for Conducting Cross-Border Discovery in View of Data Protection and Data Privacy Regulations: Eight detailed practice points, each that provide a hypothetical situation, for addressing everything from the need to proceed deliberately in countries with comprehensive Data Protection Laws to releasing legal holds and return or dispose of data promptly upon termination of a matter;
  • Practical Approaches Appendices: The Sedona Conference In-House Tool Kit for Data Protection and Cross-Border Discovery: A handful of useful documents that include an 18 page eDiscovery and Data Protection Model Guideline (which includes answers to FAQs), a Template Cross-Border Discovery Management Form for In-House eDiscovery Teams, a one page Talking Points Infographic for Internal Business Clients and Employees and an Exemplar Heat Map of Data Protection and Data Privacy Regulations.

The PDF guide can be downloaded here.  As always, it’s free!

The Practical Approaches guide is open for public comment through December 15, 2015. Questions and comments can be sent to comments@sedonaconference.org.  After reviewing the comments, the drafting team expects to publish a “final” version early next year.  In addition, a 90-minute webinar will be scheduled for later this fall to address questions you may have to a panel selected from the drafting team, and will be announced on The Sedona Conference web page.

So, what do you think?  Does your organization struggle with cross-border discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Want a Definition of “Possession, Custody, or Control” of ESI? Look to The Sedona Conference: eDiscovery Best Practices

Hard to believe that we’re just now getting around to covering it, but The Sedona Conference® released a new commentary back in April. This guide strives to provide guidance to defining the phrase “possession, custody, or control” as it’s used in Federal Rules 34 and 45.

Rule 26(a) of the Federal Rules of Civil Procedure allows for the discovery of “documents, electronically stored information, and tangible things” in the responding party’s “possession, custody, or control.” Similarly, Rule 34(a) and Rule 45(a) obligate a party responding to a document request or subpoena to produce “documents, electronically stored information, and tangible things” in that party’s possession, custody, or control. However, nowhere does the Rules provide any definition of the phrase “possession, custody, or control”, requiring parties to look to case law for a definition. Unfortunately, the case law has proved to be unclear and inconsistent in providing such a definition. In addition, determining whether ESI should be considered to be in a responding party’s “possession, custody, or control” has become more complex, with the growing popularity of technologies and trends such as social media and cloud computing.

The public comment version of The Sedona Conference Commentary on Rule 34 and Rule 45 Possession, Custody, or Control was released in April to provide practical, uniform and defensible guidelines regarding when a responding party should be deemed to have “possession, custody, or control” of documents and all forms of electronically stored information (ESI) subject to Rule 34 and Rule 45 requests for production. A secondary purpose of the Commentary is to advocate abolishing use of the common-law “practical ability test” for purposes of determining Rule 34 and Rule 45 “control” of ESI, which has led to “inequitable” situations in which courts have held that a party has Rule 34 “control” of Documents and ESI even though the party did not have the actual ability to obtain the Documents and ESI.

The guide begins with a one-page Abstract that briefly describes the issue and the goal of the commentary, followed by a one-page list of the actual principles. They are:

  • Principle 1: A responding party will be deemed to be in Rule 34 or Rule 45 “possession, custody, or control” of Documents and ESI when that party has actual possession or the legal right to obtain and produce the Documents and ESI on demand.
  • Principle 2: The party opposing the preservation or production of specifically requested Documents and ESI claimed to be outside its control, generally bears the burden of proving that it does not have actual possession or the legal right to obtain the requested Documents and ESI.
  • Principle 3(a): When a challenge is raised about whether a responding party has Rule 34 or Rule 45 “possession, custody, or control” over Documents and ESI, the Court should apply modified “business judgment rule” factors that, if met, would allow certain, rebuttable presumptions in favor of the responding party.
  • Principle 3(b): In order to overcome the presumptions of the modified business judgment rule, the requesting party bears the burden to show that the responding party’s decisions concerning the location, format, media, hosting and access to Documents and ESI lacked a good faith basis and were not reasonably related to the responding party’s legitimate business interests.
  • Principle 4: Rule 34 and Rule 45 notions of “possession, custody, or control” should never be construed to trump conflicting state or federal privacy or other statutory obligations.
  • Principle 5: If a party responding to a specifically tailored request for Documents or ESI (either prior to or during litigation), does not have actual possession or the legal right to obtain the Documents or ESI that are specifically requested by their adversary because they are in the “possession, custody, or control” of a third party, it should, in a reasonably timely manner, so notify the requesting party to enable the requesting party to obtain the Documents or ESI from the third party. If the responding party so notifies the requesting party, absent extraordinary circumstances, the responding party should not be sanctioned or otherwise held liable for the third party’s failure to preserve the Documents or ESI.

The remainder of the guide covers 1) the background that led to the new principles, including inconsistent interpretations of “possession, custody, or control” within the Rules, shortcomings of the “practical ability test” and effect of new technologies on the analysis and 2) a detailed look at each of the new principles. There is also an Appendix with a lengthy spreadsheet of cases where “possession, custody, or control” was at issue.

As usual, the Commentary is free and can be downloaded here. As this is the public comment version, you can submit comments to info@sedonaconference.org, or fax(!) them to 602-258-2499.

So, what do you think? Will these new principles lead to a consistent application of “possession, custody, or control” within the courts? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Sedona Conference Updates Guide for Judges Again – eDiscovery Trends

In 2011, The Sedona Conference® made a public comments version of the Cooperation Proclamation: Resources for the Judiciary available on the Sedona Conference website. As the Preface states, “The Resources are intended to aid State and federal judges in the management of electronically stored information (“ESI”) in civil actions for which the judges are responsible”. In 2012, the Resources guide was updated. Last month, the Resources guide was updated again and the free version is available on the Sedona Conference web site.

As noted in the Preface, “Whatever the judge’s role, the Resources offer a framework for the management of ESI. This December 2014 edition expands that framework and again focuses on the “stages of litigation from the judge’s perspective,” starting with the preservation of ESI through the initial case management order (whatever that may be called in a specific jurisdiction), the resolution of discovery disputes, trial, and post-trial awards of costs.”

Also new is updated case law and other sources of information. And articles that have not been peer-reviewed, but “which are noteworthy in the opinion of the Senior Editors”, have been included in a new “Addendum.” Finally, this December 2014 edition also “includes a new, separate section on judicial ethics in the context of ESI and presents timely matters for judges to consider.” As noted in the Preface, “The Senior Editors trust that this new section will be the beginning of what will be a continuing—and evolving—dialogue on judicial ethics in the ‘Age of the Internet.’”

In addition to the Preface, the guide includes the same four sections as the 2012 version (Introduction, Review of Existing Literature on E-Discovery for Judges, General Recommendations for Judges and The Stages of Litigation from a Judge’s Perspective), as well as the new ESI-Related Ethics for Judges section and the aforementioned new Addendum.

Once again, creation of the new edition was led by senior editors Ronald Hedges and Kenneth Withers with Karen Van Allen once again serving as editorial coordinator. Judicial Reviewers were:

  • Hon. Gill S. Freeman, Circuit Judge, 11th Judicial Circuit Court, Florida
  • Hon. Elizabeth M. Schwabedissen, General Magistrate, 11th Judicial Circuit Court, Florida
  • Hon. Craig B. Shaffer, U.S. Magistrate Judge, District of Colorado
  • Hon. Thomas J. Shields, U.S. Magistrate Judge, Southern District of Iowa
  • Hon. Stephen J. Smith, Administrative Law Judge, State of California

All three versions of the Cooperation Proclamation: Resources for the Judiciary are available here. You’ll have to provide your information to download, but that will get you added to the Sedona Conference email announcement list, which is always a good thing.  You can submit comments or proposed changes by emailing to the co-editors at kjw@sedonaconference.org or r_hedges@live.com.

So, what do you think? Is this an improved guide over the one from two years ago? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscoveryDaily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Richard G. Braman: 1953 – 2014

I learned from Ralph Losey’s excellent blog, e-Discovery Team ®, that Richard Braman, the Founder and Executive Director Emeritus of The Sedona Conference®, passed away on Monday after battling an extended illness.  He was only 60 years old.

For those of you who don’t know, The Sedona Conference® (TSC) is a nonprofit, 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, and intellectual property rights. The mission of TSC is to drive the reasoned and just advancement of law and policy by stimulating ongoing dialogue amongst leaders of the bench and bar to achieve consensus on tipping point issues.  Richard founded the TSC in 1997 and its impact on the legal world and electronic discovery has been enormous.

Another of Ralph’s posts from a couple of years ago provides a lot of insight about TSC and Richard, as well.  In the post, with regard to electronic discovery, Ralph provides a list of 35 publications that TSC’s Working Group 1 on Electronic Document Retention and Production had (at the time) generated since 2003.  All of these publications are free from the TSC website!

That’s the number of publications just for one working group – there are nine(!) other working groups in TSC, related to everything from The Role of Economics in Antitrust to Intersection of the Patent and Antitrust Laws and Mass Torts and Punitive Damages.  You start to really get a sense of the enormous impact that TSC has had on the legal profession.

Richard is one of the “true American heroes” that Joe Looby references in his documentary The Decade of Discovery that is set to be shown at the Manhattan Film Festival next Saturday (June 21) for their contributions to the tremendous progress made over the past decade in eDiscovery practice.  In 2013, he was named by The American Lawyer as “one of the 50 most innovative people in Big Law in the last 50 years.”

Richard’s legacy will live on indefinitely through TSC and those of us in the legal industry, attorneys and technologists alike, have benefitted greatly from his influence.  The In Memoriam page on the TSC site can be found here, with two video clips of Richard from The Decade of Discovery.  His obituary and information on his memorial service can be found here.

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