THE SEDONA PRINCIPLES

If you are preparing to do battle on the field of electronic discovery, you would do well to come equipped with the Sedona Principles.¹ The Sedona Principles for Addressing Electronic Document Production represent the best practices and recommendations for handling the production of electronically-stored data in civil litigation.² And their influence is beginning to be felt in courtrooms across the nation.

The Sedona Principles are the result of a two-year effort by a distinguished group of attorneys, judges, academics, and IT professionals to analyze current issues in electronic discovery. A small working group did the yeoman’s work, after which the principles were subjected to peer review at the annual Sedona Conferences and then public comment. The post public-comment version was published in January 2004. To the Executive Director and founder of the Sedona Conference, Richard G. Braman, one of the real strengths of the Sedona Principles is that they are "the product of many minds, not one...and the many minds are working on a dialogue process".³

Driving the Sedona Principles on electronic discovery is the fundamental belief that electronic document production can be quite different from paper document production. Its volume and duplicability, its persistence, dispersion and searchability, and metadata, for example, are all things that make producing electronic documents "qualitatively and quantitatively different from producing paper documents". ⁴ While it is stated that the Sedona Principles are intended to complement, and not supplant the Federal Rules of Civil Procedures, it is clear that some involved in this effort believe that the rules of civil procedure are simply not up to the job of dealing with electronic document production.

Even in their draft form, the influence of the Sedona Principles has been felt. In Zubulake v. UBS Warburg, LLC, CIV 02-1243, 2003 WL 21087884 (S.D. N.Y., May 13, 2003) the leading case on electronic discovery, U.S. District Judge Shira A. Scheindlin references the Sedona Principles twice. This past spring, Judge Scheindlin joined the faculty at the Sixth Annual Conference on Complex Litigation focusing on Electronic Discovery.

Alabama’s own John L. Carroll sees the importance of the Sedona Principles. Carroll has been both litigator and judge; now, he is Dean of Cumberland School of Law. Carroll attended the Sixth Annual Conference as a faculty member. He attended past meetings of the working group as an observer. And as an observer, he issued, along with Kenneth J. Withers of the Federal Judicial Center, an opinion paper exposing the weaknesses of the Sedona Principles.

Carroll’s major point of disagreement with the Sedona Principles would be their endorsement of certain "presumptions or specific judicial action beyond the exercise of judicial discretion on a case-by-case basis." ⁵ For example, Principle 9 states "Absent a showing of special need and relevance, a responding party should not be required to preserve, review or produce deleted, shadowed, fragments or residual data or documents". Carroll argues that "[n]o presumption should be created, either by rule or by standard of practice, that certain categories of data are outside the scope of discovery, creating an obligation on the part of requesting parties to establish "special" need and relevance". ⁶

According to Carroll, "the people involved with the Sedona Conference admit the principles have a defense-side bent but they are trying to get the plaintiff’s bar’s input". ⁷ He states, "For some reason, the plaintiff’s bar hasn’t been engaged in this discussion". Carroll thinks its important for the plaintiff’s bar to get involved in the Sedona process, specifically, and the electronic discovery rule-making process, generally.

Braman explains that the initial members of the working group were "company lawyers that were concerned about producing documents, not the lawyers requesting documents". "They were representing the people that were worried about millions and millions of e-mail and documents and how to handle the problem instead of the requesting party", according to Braman.

Carroll and Braman both agree that one of the most important statements to be found in the Sedona Principles Addressing Electronic Document Production is found in Principle 3, which is a recommendation for early communication between the parties. For Carroll, "[t]he key is to create a mechanism under which, very early in the litigation, the parties are required to communicate about issues relating to the discovery of electronic material, exchange relevant information about their systems, and either come to agreement or clearly present remaining areas of contention to the court". ⁸

Braman says "whether you use the Rule 16 meet and confer or file the complaint and simply pick up the phone, you just ought to force yourself to deal with these [electronic discovery] issues". According to Braman, "the producing parties have to come to the table with real knowledge of what’s there [electronically], and the requesting parties have to come to the table with real knowledge of what’s relevant" because the court is not going to want to deal with parties uneducated on the issues of electronic discovery.

1     "Electronic discovery refers to the discovery of electronic documents and data. Electronic documents include e-mail, web pages, word processing files, computer databases, and virtually anything that is stored on a computer". The Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Discovery 1 (Sedona Conference Working Group Series 2004).

2     The 2004 post-public comment verison of the Sedona Principles Addressing Electronic Document Production is available to download free from the Sedona Conference website at www.thesedonaconference.org. An annotated bound version is available from publisher Pike & Fischer, Inc.

3     Interview with Richard Braman, April 6, 2004.

4     The Sedona Principles, 3.

5     J. Carroll and K. Withers, "Observations on The Sedona Principles", 2.

6     "Observations on the Sedona Principles", 7.

7     Interview with The Hon. John L. Carroll (ret.), March 30, 2004.

8     "Observations on the Sedona Principles", 9.