In January, The Sedona Conference® made available the "post-public comment" version of its Commentary on Proportionality in Electronic Discovery, first published in 2010. The publication is available for download, here.
This month, the Sedona Conference® published a public comment version of its latest paper, The Sedona Conference® Primer on Social Media. The primer, a somewhat different publication than prior commentaries, is described in its Preface as follows:
Unlike many of previous publications in this series, this is not entitled a “Commentary,” nor does it present any formal “Principles,” although it contains plenty of practical guidance for attorneys, judges, and parties. This is called a “Primer” because the goal is to provide primary instruction to the bar and bench in the basics of social media and the law, from definitions, to the use of social media in business, to the discovery of social media in litigation, to professional responsibilities lawyers have in relation to their own use of social media. This is a fast-developing and fast-changing area of technical, social, and legal development, and any consensus-based Commentary or set of Principles that claims to advance the law in this area may be doomed to obsolescence as soon as it is announced on Twitter. However, we hope that this Primer represents a positive first step in grounding the dialogue leading to consensus on moving the law forward in the reasoned and just way.
This publication is available for download from The Sedona Conference®, here.
In March, the American Bar Association’s Electronic Discovery [ESI] in Bankruptcy Working Group issued its Interim Report on Electronic Discovery Issues in Bankruptcy Cases. The Working Group “was formed to study and prepare guidelines or a best practices report on the scope and timing of a party’s obligation to preserve electronically stored information (ESI) in bankruptcy cases” and has prepared preliminary guidelines in three bankruptcy-related subject areas: “(i) large Chapter 11 cases; (ii) middle market and smaller Chapter 11 cases; and (iii) Chapter 7 and Chapter 13 cases.” Those preliminary guidelines are appended to the Interim Report, which was issued to “invite and stimulate comments from a wider audience.” Thus, readers are encouraged to review the report, available here, and to submit comments to the Working Group using the contact information provided.
Since the amendment of the Federal Rules in 2006, many states have adopted their own rules to address the discovery of electronically stored information. Thomas Allman, a recognized authority on electronic discovery, has given permission to post his article identifying and analyzing the myriad of state e-discovery rules around the country. Our thanks to Mr. Allman for his analysis, and his gracious permission to post the article here.
To access the article, click here.
Thomas Y. Allman. The author, a retired General Counsel, is Chair Emeritus of Working Group 1 of the Sedona Conference,® a co-editor of the PLI Electronic Discovery Deskbook (2011) and serves as an Adjunct Professor at the University of Cincinnati College Of Law.
In March, The Sedona Conference® released a public comment version of its latest publication: Commentary on Ethics & Metadata. The commentary is the first “to move beyond [Working Group 1’s] previously exclusive focus on aspects of discovery or records management/preservation” and focuses on ethical obligations surrounding metadata in both the discovery and non-discovery context.
The commentary is available for download from The Sedona Conference®, here.
In December, the Sedona Conference® made available its latest publication, International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation & Discovery of Protected Data in U.S. Litigation (Public Comment Version). Among the information included are six Principles and attendant commentary as well as a model protective order and a “model data process and transfer protocol for use by parties and courts to better protect litigation-related data subject to data protection laws within the ambit of traditional U.S. litigation and court discovery practices.”
From the Introduction:
Here, TSC advances its position that data protection and discovery must co-exist. Data Protection Laws, after all, are not inherently antithetical to U.S. preservation and discovery efforts. U.S. courts and parties often provide protections for personal, confidential, and sensitive information through the use of confidentiality agreements and protective orders. Courts, in fact, have denied discovery in circumstances where privacy rights are deemed more important than the discovery sought by litigants.
Continue Reading...If you’re looking for a list of State or Local District Court Rules addressing electronic discovery, please click the link “Local District Court Rules” or “State Court Rules” on the left-hand side of this page.
Last month The Sedona Conference made available a public comment version of its newest publication, The Sedona Conference® Cooperation Proclamation: Resources for the Judiciary (“The Resources”). The Resources “are intended to assemble and promote a variety of proven judicial management tools to help parties develop and execute appropriate, cost-effective, cooperative discovery plans; avoid unnecessary discovery disputes; and resolve discovery disputes that may arise in a fair and expeditious manner.” The publication, a wealth of information in itself, is part of a larger effort by The Sedona Conference® to create an “interactive web site for judges to view, comment on, and contribute to over time.” The Resources will:
Continue Reading...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:
Continue Reading...Today The Sedona Conference® made available its Commentary on Proportionality in Electronic Discovery. The commentary (published as a "public comment version") provides valuable insight and guidance on one of the hottest topics in e-discovery today. Among other things, the publication identifies six Principles of Proportionality, intended to “provide a framework for the application of the doctrine of proportionality to all aspects of electronic discovery.” Those principles are:
Continue Reading...The Sedona Conference®, a charitable research and education institute “dedicated to the advancement of law and policy in the areas of antitrust law, complex litigation and intellectual property rights” recently published an update to its 2007 Commentary on Legal Holds, which, according to its authors, “reflects an accurate view of reasonable and defensible practices that organizations should consider in 2010 and going forward when addressing the issue of legal hold triggers and process.” The Commentary provides insightful discussion of the issues surrounding preservation obligations and legal holds, including eleven Guidelines “intended to facilitate compliance by providing a framework an organization can use to create its own preservation procedures.” It is also a great resource for practitioners and other members of the legal community who recognize the need to stay abreast of changes in this important area.
The Sedona Conference Glossary, now in its third edition, is intended to served as a “tool to assist in the understanding and discussion of electronic discovery and electronic management issues…” and provides definitions/explanations of many terms commonly (and not so commonly) used in e-discovery and digital information management.
Both publications are available for download here.
U.S. Court of Federal Claims
Rules of the United States Court of Federal Claims 16, 26, 33, 34, 37, 45
July 2008. Available for free download here.
From the Preface:
This Sedona Conference® Commentary focuses on the decision making process relating to the preservation of sources of electronically stored information that may contain discoverable information that is “not reasonably accessible.” The “reasonable accessibility” distinction - introduced by the 2006 Federal E-Discovery Amendments as part of the “two-tiered” approach to discovery - plays a role in, but is not wholly determinative of, preservation obligations.
The central dilemma of preservation planning in the absence of the opportunity to discuss discovery requests or reach prior agreement among the parties is predicting exactly which sources of information may actually be discoverable in a given case. No bright-lines exist. The primary duty is to make reasonable assessments in good faith.
To assist litigants and the courts, we have developed the following Guidelines that summarize our recommendations for making those assessments. The Guidelines also discuss how parties may “identify” inaccessible sources that will not be preserved and emphasize the value of cooperative efforts to reach agreements on preservation topics in dispute that reflect the unique demands of each case.
July 2008. Available for free download here.
Excerpt:
The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information (“ESI”). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes – in some cases precluding adjudication on the merits altogether – when parties treat the discovery process in an adversarial manner. Neither law nor logic compels these outcomes.
With this Proclamation, The Sedona Conference® launches a national drive to promote open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collaborative, transparent discovery. This Proclamation challenges the bar to achieve these goals and refocus litigation toward the substantive resolution of legal disputes.
By Barbara J. Rothstein, Ronald J. Hedges, and Elizabeth C. Wiggins
Federal Judicial Center (2007)
This “Pocket Guide” identifies problems that recur during the course of electronic discovery, and presents management tools that federal judges may use for responding to them. The 26-page publication may be downloaded from the Federal Judicial Center’s website, free of charge.
A number of states are considering whether to adopt special court rules addressing the discovery of electronically stored information. Here is a current list of those states that have published proposed rules amendments for public comment, with links to the relevant materials.
Alaska
Currently seeking public comment on proposed rules; deadline is Friday, 2/29/2008.
Request for Comments on Proposed Rule Changes
California
Currently seeking public comment on proposed rules; deadline is Friday, 1/25/2008.
Invitation to Comment
Iowa
Period for public comment on proposed amendments closed on 5/1/2007.
Request for Public Comment Regarding Proposed Amendments to the Iowa Rules of Civil Procedure
The National Conference of Commissioners on Uniform State Laws has approved its Uniform Rules Relating to the Discovery of Electronically Stored Information and recommended them for enactment in all the states.
The NCCUSL describes the Uniform Rules as follows:
The Uniform Rules Relating to the Discovery of Electronically Stored Information provides states with up-to-date rules for the discovery of electronic documents in civil cases. The Uniform Rules provide procedures for parties in a civil case to jointly follow relating to a number of issues, including the preservation of the electronic information; the form in which the information will be produced; and the period of time in which the information must be produced. The Uniform Rules limit the sanctions which may be imposed on a party for failure to provide electronic information that has been lost as the result of routine operation of an electronic information system, only if the system was operated in good faith. The Uniform Rules address the unique difficulties in accessing some electronic information by providing certain restrictions on its discovery. For instance, a party may object to discovery of electronically stored information on the grounds that the information is not reasonably accessible because of undue burden or expense. However, the court may order discovery of such information if it is shown that the likely benefit of the proposed discovery outweighs the likely burden or expense, and may allocate between the parties the expense of conducting the discovery.
A version of the Uniform Rules without comments is available here.
In August 2006, the Conference of Chief Justices approved the Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information as a reference tool for state trial court judges faced by a dispute over e-discovery.
These Guidelines are intended to help in identifying the issues and determining the decision- making factors to be applied in the circumstances presented in a specific case. They should not be treated as model rules or universally applicable standards. They have been crafted only to offer guidance to those faced with addressing the practical problems that the digital age has created. The Conference of Chief Justices recognizes that the Guidelines will become part of the continuing dialogue concerning how best to ensure the fair, efficient, and effective administration of justice as technology changes. They should be considered along with the other resources such as the newly revised provisions on discovery in the Federal Rules of Civil Procedure and the most recent edition of the American Bar Association Standards Relating to Discovery. Although the Guidelines acknowledge the benefits of uniformity and are largely consistent with the revised Federal Rules, they also recognize that the final determination of what procedural and evidentiary rules should govern questions in state court proceedings (such as when inadvertent disclosures waive the attorney-client privilege) are the responsibility of each state, based upon its legal tradition, experience, and process.
SEDONA, AZ – The Sedona Conference®, the nation’s premier nonpartisan law and policy think tank, has announced publication of The Sedona Principles, Second Edition, Best Practices Recommendations and Principles for Addressing Electronic Document Production. Building on the success of first edition of The Sedona Principles, which appeared in January 2004, the second edition has been eagerly anticipated by lawyers and judges across the country looking for guidance in the fast-paced world of electronic discovery.
The Sedona Principles, Second Edition, may be downloaded here free of charge.
Jonathan Redgrave, chairperson of the Steering Committee of The Sedona Conference® Working Group 1, which drafted both editions of The Sedona Principles, said “the second edition provides helpful and timely guidance for the issues and circumstances that the amended civil rules, by their nature, cannot address.” He added, “we are very grateful for the contributions and thoughts of the literally hundreds of members of the working group that make this a consensus document reflecting views from a wide array of interests and specialties.”
Richard G. Braman, Executive Director of The Sedona Conference®, said that publication of the second edition “represents a new milestone in our efforts. It reflects the fact that our Working Groups produce ‘living documents’ that are open to substantive revision as developments in our society and laws may require. This evolution is in the grand tradition of the common law and also the mission of The Sedona Conference® to move the law forward in a reasoned and just way.”
The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age is now available for download. This document, the second published by The Sedona Conference Working Group Series, addresses "questions related to the management of electronic information in organizations as a result of business, statutory, regulatory and legal needs. The subject of information management and record retention is of critical importance in the digital age and the subject of many treatises and publications, yet the members and participants of the Working Group believed there was a need to distill existing thoughts and, in doing so, reach across the boundaries of legal compliance, records management and information technology." To view and download the complete report, click here.
The 2005 Socha-Gelbmann Electronic Discovery Survey Report has been released. The 2005 Survey examines the state of electronic discovery in 2004, through direct interviews and an online surveys of 69 consumers and providers of electronic discovery services, as well as website data from more than 200 organizations in the electronic discovery niche. It also compares this year's results with results from the preceding two years, and makes projections for 2005 through 2007. For more information about the survey, or to purchase, click here.
Judge Scheindlin, United States District Court Judge for the Southern District of New York, has co-authored an article that surveys decisions concerning e-discovery sanctions issued since January 1, 2000. The article is meant to provide guidance for e-discovery reform by examining what state and federal courts have considered to be sanctionable conduct and the sanctions that have been imposed. Full text of the article can be found here.
Several states, including Kansas, Delaware, Mississippi, and Texas have amended their Civil Rules to address electronic documents in discovery. New Jersey, Wyoming, and Arkansas have also adopted local rules.
The Sedona Conference(SM) is a nonprofit 501(c)(3) research and educational institute, dedicated to the advanced study of law and policy in the areas of antitrust, intellectual property, and complex litigation. Since its founding in 1997, it has developed an international reputation as a balanced and forward-looking law and policy think tank that has and will continue to provide constructive contributions to the reasoned and just development of law and policy. The Sedona Guidelines and The Sedona Principles have come to have been known as the preeminent thought-leadership pieces in the field.
Ken Withers is a senior judicial education attorney with the Federal Judicial Center in Washington, D.C., where he is responsible for developing educational programs for federal judges and Court-employed attorneys. These programs include electronic discovery, technology in the criminal justice system, and advanced uses of technology in the administration of justice. Ken is also heavily involved in the federal rules amendment process.
Created by defense trial lawyers and corporate counsel, Lawyers for Civil Justice (LCJ) is a national coalition supporting excellence, fairness and improvements within the civil justice system. It supports activities at both the state and national level designed to achieve reforms, which will ensure balance in the civil justice system. Greater predictability in damage awards, streamlining the discovery process, and improving the management of litigation and scarce judicial resources are all long range goals of LCJ.
Continue Reading...As an e-discovery special master and expert witness, George Socha tracks e-discovery happenings, articles, and books and provides technology vendor information through his website, sochaconsulting.com. George is also a researcher and frequent speaker on the subject of electronic discovery.
The U.S. Courts website is a great place view postings and make comments to the proposed amendments of the rules to the Federal Rules of Civil Procedure regarding electronic discovery.
The Defense Research Institute (DRI) is the national organization of defense trial lawyers and corporate counsel. DRI's E-Discovery Committee keeps members informed on the latest developments in e-discovery law through their website and annual e-discovery CLE Seminar.
Continue Reading...Commissioner Richard E. Best, retired from the San Francisco Superior Court in 2003 after 29 years of service, and continues to promote the use of technology in discovery, as well as serve as a private discovery referee. His website, California Civil Discovery Law, is a repository of continuing education materials, discovery resources, case law and e-discovery updates.
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