Sponsored by Kroll Ontrack Inc. The Impact of Recent E-Discovery Think Tank Reports The Sedona Principles & ABA Civil Discovery Standards New York June 30, 2004 Sponsored by Kroll Ontrack Inc. June 10, 2018

The Sedona Principles What is The Sedona Conference? 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 Founded in 1997 by Richard Braman: Director Started as a new form of CLE: small, discussion group settings focused on dialogue not debate Goal to eventually be a “think tank” Interim evolution to include “Working Groups”

First Sedona “Working Group” The Sedona Principles What is the “Sedona Conference Working Group on Best Practices for Electronic Document Retention and Production”? Founded in 2002 First Sedona “Working Group” No talking heads: aim is useable working papers Collaborative discussion, not debate Evolving, continuing, not static Currently over 100 members, participants and observers; includes representatives from in-house; outside counsel and e-discovery consultants. Current observers include judges (Hon. John Carroll (ret.), Hon. Shira Scheindlin, Hon. Richard Best (ret.)) as well as Ken Withers (Federal Judicial Center)

What are “The Sedona Principles”? First work product of working group Draft published in 2003 for comment; revised in 2004 to reflect numerous edits/changes; annotated version now published by Pike & Fisher They are: Important background and roadmap of issues Presumptive guidance on e-discovery issues Flexible They are not: Absolute statements of law Unchangeable

What is the impact of The Sedona Principles? Cited by courts (e.g., Zubulake) Cited in the national and local rules process (e.g., 9th Circuit Draft Model Rule) Cited in numerous articles addressing e-discovery Cited in briefs and submissions to courts Used as resource in numerous judicial and legal education programs You need to be aware of the Principles & how they may apply to your case.

The Sedona Principles 1. Electronic data and documents are potentially discoverable under Fed. R. Cir. P. 34 or its state law equivalents. Organizations must properly preserve electronic data and documents that can reasonably be anticipated to be relevant to litigation.* *Emphasis added for this presentation only

The Sedona Principles 2. When balancing the cost, burden, and need for electronic data and documents, courts and parties should apply the balancing standard embodied in Fed. R. Civ. P. 26(b)(2) and its state law equivalents, which require considering the technological feasibility and realistic costs of preserving, retrieving, producing, and reviewing electronic data, as well as the nature of the litigation and the amount in controversy.

The Sedona Principles 3. Parties should confer early in discovery regarding the preservation and production of electronic data and documents when these matters are at issue in the litigation, and seek to agree on the scope of each party’s rights and responsibilities.

The Sedona Principles 4. Discovery requests should make as clear as possible what electronic documents and data are being asked for, while responses and objections to discovery should disclose the scope and limits of what is being produced.

The Sedona Principles 5. The obligation to preserve electronic data and documents requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant data.

The Sedona Principles 6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronic data and documents.

The Sedona Principles 7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronic data and documents were inadequate.

The Sedona Principles 8. The primary source of electronic data and documents for production should be active data and information purposely stored in a manner that anticipates future business use and permits efficient searching and retrieval. Resort to disaster recovery backup tapes and other sources of data and documents requires the requesting party to demonstrate need and relevance that outweigh the cost, burden, and disruption of retrieving and processing the data from such sources.

The Sedona Principles 9. Absent a showing of special need and relevance a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual data or documents.

The Sedona Principles 10. A responding party should follow reasonable procedures to protect privileges and objections to production of electronic data and documents.

The Sedona Principles 11. A responding party may satisfy its good faith obligation to preserve and produce potentially responsive electronic data and documents by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data most likely to contain responsive information.

The Sedona Principles 12. Unless it is material to resolving the dispute, there is no obligation to preserve and produce metadata absent agreement of the parties or order of the court.

The Sedona Principles 13. Absent a specific objection, agreement of the parties or order of the court, the reasonable costs of retrieving and reviewing electronic information for production should be borne by the responding party, unless the information sought is not reasonably available to the responding party in the ordinary course of business. If the data or formatting of the information sought is not reasonably available to the responding party in the ordinary course of business, then, absent special circumstances, the costs of retrieving and reviewing such electronic information should be shifted to the requesting party.

The Sedona Principles 14. Sanctions, including spoliation findings, should only be considered by the court if, upon a showing of a clear duty to preserve, the court finds that there was an intentional or reckless failure to preserve and produce relevant electronic data and that there is a reasonable probability that the loss of the evidence has materially prejudiced the adverse party.

ABA Civil Discovery Standards ABA Standards ABA Civil Discovery Standards The Standards were adopted in August of 1999 to address issues not covered by state or federal rules of procedure Standards 29 & 30 specifically address electronic discovery Since 1999, a Task Force has drafted proposed amendments to the Standards relating to e-discovery In August of 1999, the ABA House of Delegates adopted the Civil Discovery standards to address practical aspects of the discovery process not covered by state or federal rules of procedure. Two of the standards (29 & 30) addressed E-discovery. In the five years since the adoption of the Civil Discovery Standards, the issues surrounding E-Discovery have exploded. In light of these developments, Patricia Lee Refo, the Chair of the Section of Litigation, appointed a Task Force to reexamine the Standards insofar as they pertain to E-Discovery. The Task Force welcomes public comment on these proposed amendments. The goal of the section of Liitgation is to bring them to the House of Delegates, in final form, for approval in August 2004.

Proposed Amendments to Civil Discovery Standards: ABA Standards Proposed Amendments to Civil Discovery Standards: Existing Standard 29: Preserving and Producing Electronic Information Existing Standard 30: Using Technology to Facilitate Discovery New Standard 31: Effective Use of Discovery Conferences New Standard 32: Attorney-Client Privilege and Attorney Work Product New Standard 33: Technological Advances

Standard 29: Preserving & Producing Electronic Information ABA Standards Standard 29: Preserving & Producing Electronic Information 3 Key Modifications: Stripped of language suggesting that it was taking a position as to substantive legal doctrines Checklist of sources of e-data and discovery added to assist practitioners and judges Expanded the factors for the court to consider in ordering production or allocating costs

Standard 30: Using Technology to Facilitate Discovery ABA Standards Standard 30: Using Technology to Facilitate Discovery 2 Key Modifications: Clarifies that subdivision (a) applies to production in electronic form of discovery materials that are not stored electronically Instead of being an option, it is presumed that written discovery requests or responses should be provided to opponents unless the parties have agreed otherwise

Standard 31: Effective Use of Discovery Conferences ABA Standards Standard 31: Effective Use of Discovery Conferences Focuses on effective use of discovery conferences to deal with e-discovery 31(a) specifies several categories of e-discovery related matters that the parties should confer about at an initial discovery conference 31(b) identifies additional issues for parties to discuss at “meet-and-confer” conferences when they are focusing on specific discovery demands and obligations

Standard 32: Attorney-Client Privilege & Attorney Work Product ABA Standards Standard 32: Attorney-Client Privilege & Attorney Work Product Applies in the common situation in which e-data must be extracted for production by an IT expert not employed by the producing party Suggests three alternate routes to ameliorate waiver concerns and recommends procedures to implement them. Appointing an independent consultant to act as a special master Agreeing that production of privileged information will not effect a waiver Agreeing that extraction/review by an independent consultant will not effect a waiver

Standard 33: Technological Advances ABA Standards Standard 33: Technological Advances Addresses emerging technology that may not be electronically based To the extent that information is stored by a means that is not electronic or hard copy, Standards 29-32 may be consulted with respect to discovery of that information Appropriate modifications may still be made for differences in storage media