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The Sedona Conference® Publishes The Sedona Principles, Second Edition, Addressing Electronic Discovery

Article

E-Discovery Alert

September 1, 2007

Comprised of leading jurists, lawyers, experts, academics and others, The Sedona Conference® is the nation’s leading e-discovery think-tank. In July, The Sedona Conference® announced publication of The Sedona Principles, Second Edition, Best Practices Recommendations and Principles for Addressing Electronic Document Production. The first edition of The Sedona Principles was published in January 2004 and has been a consistent source of guidance for courts, lawyers and others grappling with electronic discovery issues. While the 14 Principles remain fundamentally unchanged from the first to second editions, the language of the Principles was updated to the extent necessary to accommodate the language of the 2006 amendments to the Federal Rules of Civil Procedure (“FRCP”). A helpful table cross referencing each major topic with the applicable Sedona Principles, FRCP and Sedona Comments is also included. Most importantly, however, the comments to each of the Principles were significantly revised and updated “to reflect the new rules, a wave of recent court decisions, advances in electronic discovery technology, and a deeper appreciation among judges and lawyers for the unique qualities of electronically stored information.” The incorporation of more recent case law (including references throughout the document to Treppel v. Biovial, 233 F.R.D. 363 (S.D.N.Y 2006) in which Gibbons represented the plaintiffs) makes The Sedona Principles an even more helpful document for research and reference purposes.

With the advent of new federal rules addressing electronically stored information (“ESI”), issues surrounding metadata and sanctions for the loss of or failure to produce ESI have been hotly debated. Therefore, the two Sedona Principles covering these topics, Principles 12 and 14, respectively, received heightened attention and were substantially revised. Both Principles now take into account the amended FRCP and Committee Notes, as well as recent decisional law and developing technology. Additionally, Principle 8 dealing with production of ESI, was revised to incorporate the FRCP’s concept of whether information is or is not “reasonably accessible.” Together with the comments, the revised Principle helps shed light on the accessibility issue by focusing the inquiry on technical accessibility and the purpose for storage, instead of only the burdens and costs of access. Finally, in light of the FRCP’s rejection of mandatory cost-shifting for ESI that is not reasonably accessible, Principle 13 has been amended to provide that the costs of retrieving and reviewing such ESI “may” (as opposed to “should”) be shared by or shifted to the requesting party. The result of these and other revisions is a comprehensive document that should continue the tradition of the first edition and provide excellent guidance to anyone dealing with issues in the rapidly evolving world of e-discovery.

The Sedona Principles, Second Edition, was the product of the efforts of The Sedona Conference® Working Group 1, of which Gibbons E-Discovery Task Force Chair Mark S. Sidoti and senior member Phillip J. Duffy are members. The second edition may be downloaded from The Sedona Conference® website, https://thesedonaconference.org and an annotated version will be published this Fall.