United States: Key Takeaways From The Sedona Conference Commentary On Defense Of eDiscovery Process: Principles 4-6 (Part II)

Last Updated: December 7 2016
Article by Natalya Northrip

In Part I of this series, we discussed the key takeaways from Principles 1-3 of The Sedona Conference WG1's "Commentary on Defense of Process: Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process" (available for download here). The Commentary seeks to address what parties can do to avoid, or at the least prepare for, challenges to an eDiscovery process they apply in a given matter and how courts should address discovery disputes.

The following are the key takeaways from Principles 4-6 of the Commentary.

Principle 4. Parties may reduce or eliminate the likelihood of formal discovery or expensive and time-consuming motion practice about an e-discovery process by conferring and exchanging non-privileged information about that process.

Comment 4.a. Benefits of Sharing Information

This principle is based on the importance of cooperation in the discovery process. This includes disclosures on the specifics of discovery processes, as contemplated by Rule 26(f) of the Federal Rules of Civil Procedure, and as encouraged or required by numerous courts.

Often parties are unwilling to share details about their discovery process until and unless the complaining party can show to the court that reasonable grounds exist for questioning some aspect of that process. This strategy sometimes results in nothing more than a short-term benefit, since courts typically require some disclosure on these issues once a discovery-dispute motion is filed.

The Commentary points out that voluntary disclosures of such information actually may be in the disclosing party's self-interest, as it may help address concerns of the challenging party and, thus, eliminate unnecessary motions, hearings, and discovery about discovery. Furthermore, by reaching an agreement on discovery process, the responding party greatly reduces the chances that the requesting party will later complain about alleged deficiencies in the process. A good time to make some of these disclosures and to seek an agreement on the process is a Rule 26(f) conference.

Comment 4.b. Scope of Information Exchange

Although it is beneficial to disclose information about the eDiscovery process, counsel should be mindful of their duty to protect client confidentiality and to diligently represent the client's position. When deciding how much information to disclose, the Commentary suggests that a party consider the following factors:

  • The extent to which the information about the process is discoverable, or is otherwise likely to become apparent to the adversary;
  • The extent to which the processes being employed are untested or are at risk of being rejected if challenged;
  • The extent to which rejection of the process could result in significant delay or additional expense in resolving the dispute on the merits;
  • Whether the process being employed could lead to an irreversible loss of discoverable information;
  • Whether information about the process is protected by the attorney-client privilege or the work-product doctrine; and
  • The extent to which disclosure is likely to lead to a more just, speedy, and inexpensive determination of the matter.

By way of illustration, the Commentary suggests that it would be reasonable for a party to disclose, during meet and confer, its custodian list, date range, and search terms it intends to use to determine the ESI that it reviews and to seek an agreement on these items. However, the responding party could justifiably refuse to comply with the requesting party's request to disclose technical details about the search and culling methodologies, such as the list of system file types that are not indexed, the "stop words" that are not included in the search index, and the exception reports showing which files were not successfully processed.

The Commentary suggests the following non-exhaustive list of topics appropriate for disclosure, depending on the circumstances:

  • The identification of data sources that will be subject to preservation and discovery;
  • The relevant time period;
  • The identities of particular individuals likely to have relevant ESI;
  • The form or forms of preservation and production;
  • The types of metadata to be preserved and produced;
  • The identification of any sources of information that are not reasonably accessible because of undue burden or cost, such as backup media and legacy data;
  • Use of search terms or other methods of reducing the volume of ESI to be preserved or produced; and
  • Issues related to assertions of privilege and inadvertent production of privileged documents.

Principle 5. When developing and implementing an e-discovery process, a responding party should consider how it would demonstrate the reasonableness of its process if required to do so. Documentation of significant decisions made during e-discovery may be helpful in demonstrating that the process was reasonable.

This principle stresses the importance of documenting key decisions made during an eDiscovery process to help demonstrate good faith, reasonableness, and due diligence in the event of a later challenge. A good "paper trail" is particularly important in the context of complex litigation, large volumes of ESI, and where the client, outside counsel, and an outside eDiscovery vendor are all engaged on different aspects of the eDiscovery process.

While not every decisions needs to be documented, the Commentary proposes that documentation may be useful for the following aspects of the eDiscovery process:

  • The procedures followed for satisfying the party's preservation obligation, including the distribution list and the legal hold notice itself, and any instructions or guidance provided to the person(s) responsible for preserving ESI covered by the legal hold;
  • A description of the portions or aspects of a client's IT systems that are likely to have discoverable ESI;
  • Records of interviews with key custodians to identify potential sources of discoverable information;
  • Sources of information considered for collection, including those ultimately not collected, and the reasons therefore;
  • Chain-of-custody records for collected documents;
  • Data processing specifications for data collected for review;
  • Search and culling methods employed, including keywords, date restrictions, TAR protocols, and other culling parameters and filters;
  • Procedures, instructions, and other information used for training document reviewers on how to make determinations of relevance, confidentiality, or privilege;
  • Sampling or other validation methods used to test the efficacy of any search, retrieval, or review methodologies; and
  • The substance of any meet-and-confer efforts with opposing counsel, including any agreements reached.

Principle 6. An e-discovery process should include reasonable validation.

Validation is important to test any design flaws in the as-executed eDiscovery process and to reveal any flaws that may have been introduced during its implementation. The Sedona Conference has addressed the concept of validation in another paper, Commentary on Achieving Quality in the E-discovery Process, 15 Sedona Conf. J. 265, 279-82 (2014).

As with other eDiscovery efforts, steps undertaken to validate the results of a process should be reasonable and proportionate to the expected benefits of that validation. The amount of effort and the level of formality of the validation process will depend on the complexity of the matter. Both excessive and insufficient validation have their pitfalls and parties should attempt to strike the appropriate balance between the increase in defensibility and the time and cost required to gain that increase.

We will discuss the key takeaways from the remaining Principles over the next few days.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Natalya Northrip
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions