It is finally here! The Public Comment Version of The Sedona Conference’s The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, March 2017 is hot off the press.
This compilation of 14 Principles of electronic document production is seen by many as the Bible of authoritative literature in the esoteric field of electronically stored information (ESI) best practices and law. Indeed, Sedona Conference publications, particularly in the field of eDiscovery, are heavily cited by the federal bench.
It is ironic that some 14 years after the original publication of this document, the first Principle remains where most of the problems in legal practice as regards eDiscovery are to be found. It reads, “Electronically stored information is generally subject to the same preservation and discovery requirements as other relevant information.”
Yet, many attorneys continue to fail in meeting the due diligence involved in the preservation of ESI once litigation, or its anticipation, has been triggered. It seems the mindset of “let’s wait and see what happens in this matter before spending money on this stuff,” still finds a comfortable home in the legal profession.
The problem is, of course, that with ESI there can be an early preservation window that, once shattered, cannot be put back together again. It’s broken shards remain an exposure throughout the case, awaiting only an adverse counsel who knows how to leverage this failure of due diligence into an expensive motions practice that could result in an adverse inference instruction or, worse, a dispositive order.
Sticking to Basic eDiscovery Principles
When the trigger to preservation duties is pulled, define the custodians who are key to relevant information, send preservation letters (or email memos) to them, schedule and conduct key custodian interviews, and at some point execute a collection of this data.
The basic elements of due diligence in the preservation of ESI remain the same today as when first taking shape nearly two decades ago. When the trigger to preservation duties is pulled, define the custodians who are key to relevant information, send preservation letters (or email memos) to them, schedule and conduct key custodian interviews, and at some point execute a collection of this data.
ESI that is expected to be relevant to an action must be preserved the same as paper. Sounds obvious, doesn’t it? Yet, many attorneys do not know where to begin. A haze of confusion settles over the litigation landscape. Superstitions about the cost of ESI preservation due diligence abound.
Avoiding eDiscovery paralysis
I hear the same things:
- “It is prohibitively expensive.”
- “We need a former FBI electronic forensic expert to do it properly.”
- “It is better to do nothing than to do the wrong thing.”
A certain paralysis can set in. The consequences can be devastating. Malpractice claims. Motions practice. Sanctions. All very bad for the firm’s public relations’ profile. ESI preservation due diligence run amok can lead to the loss of clients and generally a bad reputation in the legal community.
The Principles make it quite clear, “[t]he preservation analysis includes two aspects: When the duty arises, and the scope of ESI that should be preserved.” The facts of each case will define when the duty reasonably arises. There is much law that the duty to preserve arises with litigation at the latest, and with the anticipation of litigation at the earliest.
What follows is not a hypothetical. You as counsel have either a notice of claim or a complaint that you are preparing or have received that details the allegations of the action. The Principles put things quite simply, and they should remain so.
In assessing the scope of a preservation duty as soon as practicable, parties should consider persons likely to have relevant ESI. Parties should, in most circumstances, send notices to preserve relevant information to persons having relevant ESI or responsible for maintaining systems containing relevant ESI.”
So many attorneys confuse collection of ESI with actual preservation. To identify persons likely to have relevant ESI to an action and to then send preservation notices is not a complicated task. In most cases, this takes care of the firm’s preservation due diligence, with a bit of quick follow up now and then. To avoid the simple steps involved in preservation due diligence is to court potential catastrophe, an unwelcome acquaintance to any claim or action.
“Reasonable under the circumstances”
Finally, there is some great news for all law firms and practitioners who find themselves confronted with the above challenges – “An e-discovery process is not required to be perfect, or even the best available, but it should be reasonable under the circumstances.” (The Sedona Conference Commentary on Defense of Process: Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process, September 2016).
The standard is reasonableness, not perfection! The challenge here is that so many law firms began their adventure into eDiscovery via an I/T resource within the firm. There is a cultural gap, 100 light years in length, between the eDiscovery professional and the I/T professional. The benchmark for I/T is perfection. Every file out of place must have a reason for being so. Every anomaly requires an explanation and resources allocated to resolve it, to make it fit. The benchmark for eDiscovery is defensibility.
There is a body of law that defines defensibility and those measures required to achieve it to one degree or another. The author recalls being in attendance a few ago at the Georgetown Law Advanced eDiscovery Institute, seated at the Corporate Council session. The session was chaired by four Deputy General Counsels from large corporations. I will never forget the silence that descended on the room when a software developer with an I/T background stood up and informed this august panel of counsel that his predictive coding/Technology Assisted Review software could outperform their attorneys measured in review consistency.
At the conclusion of this admittedly impressive speech, one of the Deputy General Counsel stood up and said, “I do not care. I only care about defensibility, not who is closer to perfection.”
Law firms should focus on developing good, basic sound protocols that speak to defensibility and not get lost in the maze of vendor talk and proclamations as to their solutions to the challenges of eDiscovery. The only road to such a protocol is an understanding of the good, basic – and simple – blocks that make up the foundation of due diligence. This is within the reach of every firm involved in litigation.
About Author: Michael Yager
Michael Yager is an expert in eDiscovery, a published author, speaker and trainer on compliance with state and federal eDiscovery protocols. Michael has spent over 20 years in eDiscovery support. If technical knowledge of standards is what you need, Michael is your resource! Michael brings to RDI a vast knowledge of eDiscovery — the ins and outs of day-to-day issues with ingestion, culling, production and review. Michael is a graduate of The College of William and Mary. His experiences include serving for the Department of Defense, on the corporate staff of Bell Howell Corporation in Chicago, and in law firms.