United States: Key Takeaways From The Sedona Conference Commentary On Defense Of eDiscovery Process: Principles 10-13 (Part IV)

In Part I, Part II, and Part III of this series, we discussed the key takeaways from Principles 1-3, 4-6, and 7-9, respectively, 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.

In today's installment, we discuss the key takeaways from the remaining principles, Principles 10-13 of the Commentary.

Principle 10. A party may use any reasonable process, including a technology-assisted process, to identify and withhold privileged or otherwise protected information. A party should not be required to use any process that does not adequately protect its rights to withhold privileged or otherwise protected information from production.

Parties have a right to not reveal their privileged or otherwise protected information, and attorneys have a duty to protect such information belonging to their clients. The need to design an eDiscovery process that appropriately identifies and withholds privileged information is one of the highest priorities during any review and production undertaking. This is so because a party wishing to rely on the "claw-back" provisions of Federal Rule of Evidence 502(b) in case of inadvertent disclosure of privileged information would need to demonstrate that it "took reasonable steps to prevent disclosure."

When it comes to privilege review, reasonableness and proportionality are evaluated depending on the circumstances at hand, including time constraints, resource limitations, the volumes of ESI, the complexity of the task, and the inevitability of human error. Case law suggests, for instance, that failing to review a sample of "non-hits" (documents that were not responsive to the search terms) to test the effectiveness of the selection criteria developed to identify privileged material, would be inherently "not reasonable." See Victor Stanley Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (2008).

The Commentary cautions that the use of TAR in privilege review (compared to when TAR is used for responsiveness determination) is relatively new and may require the use of other quality-assessment approaches. This can be addressed through a supplemental manual review. Because manual review can take considerable time, parties should be prepared to provide an accurate estimate to the court of the time needed to conduct privilege review when requesting a reasonable production deadline.

Principle 11. Whenever possible, a dispute about an e-discovery process should be timely resolved through informed mechanisms, such as mediation between the parties and conferences with the court, rather than through formal motion practice and hearings.

The Commentary points out that early identification and resolution of potential eDiscovery disputes is critical to avoiding costly "discovery about discovery" and moving the case along. Many eDiscovery disputes can be resolved through proper communication between parties. Several mechanisms are built into the Federal Rules of Civil Procedure, and their state counterparts, to ensure that parties have an opportunity to focus on their eDiscovery strategy and articulating their respective positions.

• Rule 26(f) provides for discovery planning, during which parties are encouraged to discuss their eDiscovery plans and attempt to agree on an eDiscovery protocol that will govern document collection, review, and protection in their case.
• Rule 26(c) calls for a meet-and-confer process prior to filing a motion for protective order when discovery requests have been served. Often disputes as to the scope of the request can be negotiated at this stages, without the need to involve the court. At a minimum, this exercise can provide a way to rehearse and test an argument before the motion is filed.
• Rule 37(a)(1) calls for a meet-and-confer process prior to filing a motion to compel production. Similarly to a Rule 26(c) meet-and-confer, this process can help resolve the dispute or, at a minimum, help sharpen the argument.

Additional mechanisms are available for resolving eDiscovery disputes, including mediation and Special Masters. The Commentary points out the innovation of the United States District Court for the Western District of Pennsylvania in creating a panel of Electronic Discovery Special Masters ("EDSM") to assist in addressing ESI issues that may arise during litigation in the district. EDSM panel members are appointed by a committee of judges from the district in accordance with a set of criteria, including experience with eDiscovery issues. Once a determination is made that an EDSM panel should be involved and the parties have selected an EDSM panel member, the court will specify the Special Master's duties, "which may include, by way of example, developing protocols for the preservation, retrieval or search of potentially relevant ESI; developing protective orders to address concerns regarding the protection of privileged or confidential information; monitoring discovery compliance; [and] resolving discovery disputes." Western District of Pennsylvania, ED Information.

Wider adoption of EDSM panels by courts could provide great benefit by ensuring that a certain level of expertise and consistency is applied to eDiscovery disputes in a given jurisdiction and that case judges can focus on the merits of each case rather than on the eDiscovery process.

Principle 12. A party should not be required to provide discovery about its e-discovery process without good cause.

This principle is based on the premise that parties have a right to choose and apply their own eDiscovery process without being questioned about it until and unless good cause exists to question the quality of the results of that process. Consistent with the proportionality principles incorporated in Rules 26(b)(1) and 26(g), the District of Kansas, for example, explicitly stated in its eDiscovery guidelines that discovery about discovery should only be permitted upon a showing of good cause, considering the specific need for the discovery, including its relevance and the suitability of alternative means of obtaining information. District of Kansas, Guidelines for Cases Involving Electronically Stored Information (ESI), at 9 (July 18, 2013).

The Commentary suggests that reasonable and proportional discovery about discovery should be allowed. This includes, for instance, interrogatories seeking the identity of document custodians or deposition questions about the party's IT systems or data sources. However, more burdensome or wide-ranging discovery about discovery, such as Rule 30(b)(6) depositions of a party's IT staff or eDiscovery vendor, or extensive interrogatories about a party's preservation and production efforts or the eDiscovery process employed in the case should only be permitted upon the showing of good cause.

Principle 13. The court should not decide a motion regarding the adequacy of an e-discovery process without a sufficient factual record. In many instances, such a motion may not be ripe for determination before there has been substantial or complete production.

The Commentary makes an excellent observation that often discovery disputes are brought to court prematurely, thereby wasting judicial and party resources and time. The party seeking discovery or objecting to the reasonableness of the responding party's eDiscovery process has the burden of proving that a discovery response is deficient. Simple logic dictates that completeness of a discovery response cannot be judged until the actual production is complete. An exception to this would be a situation where it is demonstrably obvious that a party is about to embark on a patently deficient eDiscovery process, for instance, by applying a date range that does not include the entire period at issue in the case. In such situations, posing an early challenge to an eDiscovery process would prevent the need to expand the scope of eDiscovery at a later stage.

Using the Commentary's guidance on what constitutes a defensible eDiscovery process will undoubtedly prove useful to parties and courts, particularly during the time of changing technology and evolving eDiscovery case law, as courts work on defining the impact of the amended Federal Rules of Civil Procedure.

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