Electronic Discovery Law

In its most recent publication (available now in its Public Comment Version) the Sedona Conference takes on another difficult issue of e-discovery:  the preservation and production of databases and database information.  The publication, The Sedona Conference® Database Principles: Addressing the Preservation & Production of Databases and Database Information in Civil Litigation, is intended to “provide practical guidance and recommendations to both requesting and producing parties” and to “simplify discovery in civil actions involving databases and information derived from databases.”  In furtherance of those goals, the publication includes an informative introduction to the issue of preserving and producing database information, a discussion of the application of some of the existing Sedona Principles, and a discussion of the six new Database Principles and their practical application.  The six new Database Principles are:

1. Absent a specific showing of need or relevance, a requesting party is entitled only to database fields that contain relevant information, not the entire database in which the information resides or the underlying database application or database engine.

2. Due to differences in the way that information is stored or programmed into a database, not all information in a database may be equally accessible, and a party’s request for such information must be analyzed for relevance and proportionality.

3. Requesting and responding parties should use empirical information, such as that generated from test queries and pilot projects, to ascertain the burden to produce information stored in databases and to reach consensus on the scope of discovery.

4. A responding party must use reasonable measures to validate ESI collected from database systems to ensure completeness and accuracy of the data acquisition.

5. Verifying information that has been correctly exported from a larger database or repository is a separate analysis from establishing the accuracy, authenticity, or admissibility of the substantive information contained within the data.

6. The way which a requesting party intends to use database information is an important factor in determining an appropriate format of production.

The entire publication is available for download here.