In September of 2016, the Sedona Conference released Commentary on Defense of Process: Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process, for public comment. The purpose of the commentary, defensible ediscovery, is to set forth general guidance to help parties and the courts deal with the growing complexity of eDiscovery. The goal of the commentary is to provide insight into how to avoid challenges to process and provide a roadmap for the courts to handle disputes. “An ounce of prevention is worth a pound of cure”, an idiom attributed to Benjamin Franklin has never been a more insightful.
Why should the average practitioner take the time to read the Commentary and weigh in with opinions?…because defensible eDiscovery is going to become a larger issue as the size of databases increase and the complexity of handling them will require increased expertise. Understanding exactly what is required in the new age of eDiscovery based on the 2015 FRCP amendments and future changes will put you at the forefront of eDiscovery practice.
Why the Emphasis on Defense?
Most often omission of eDiscovery material is inadvertent, caused by improper processes or the failure to complete all steps and document what has been done. Sometimes, the omission is purposeful, and the courts have no tolerance for proactive omission. By focusing on the defensible processes that can be implement by a well thought out strategy, you reduce the chances of sanctions and delays in litigation.
To be clear, the Commentary states that “defense of process” is not required in every case, and that certain threshold requirements should be met before a party is required to “defend its process” or before “discovery about discovery” should be permitted. The goal of the framework within the Commentary is that if it is followed, the result will be a reduction in judicial intervention and review of discovery conduct unless and until a dispute cannot be resolved by alternative measures. Remember that “cooperation” is a major expectation of the eDiscovery phase of any litigation, the adversarial nature of litigation should be reserved for interpretation of the facts in evidence.
It is important to note that the Principles do not require perfection. They are designed to encourage parties to thoughtfully design a comprehensive eDiscovery strategy with an eye to greater defensibility. The Principles can be generally applied across all stages of the eDiscovery process, but the focus is not on how eDiscovery should be conducted, but rather on how it can be made more defensible with dispute resolution a last resort.
In order to pique your interest in downloading the Commentary, below is a summary of the Principles taken directly from the Commentary:
An eDiscovery process is not required to be perfect, or even the best available, but it should be reasonable under the circumstances. When evaluating the reasonableness of an eDiscovery process, parties and the court should consider issues of proportionality, including the benefits and burdens of a particular process.
An eDiscovery process should be developed and implemented by a responding party after reasonable due diligence, including consultation with persons with subject-matter expertise, and technical knowledge and competence.
Responding parties are best situated to evaluate and select the procedures, methodologies, and technologies for their e-discovery process.
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-privilege information about that process.
When developing and implementing an eDiscovery 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 eDiscovery may be helpful in demonstrating that the process was reasonable.
An eDiscovery process should include reasonable validation.
A reasonable eDiscovery process may use search terms and other culling methods to remove ESI that is duplicative, cumulative, or not reasonably likely to contain information within the scope of discovery.
A review process can be reasonable even if it does not include manual review of all potentially responsive ESI.
Technology-assisted review should be held to the same standard of reasonableness as any other eDiscovery process.
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.
Whenever possible, a dispute about an eDiscovery process should be timely resolved through informal mechanisms, such as mediation between the parties and conferences with the court, rather than through formal motion practice and hearings.
A party should not be required to provide discovery about its eDiscovery process without
The court should not decide a motion regarding the adequacy of an eDiscovery 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.
Make sure you read the commentary provided under each principle as well as the footnotes and the practical illustrations that are provided. Combined, they offer a very complete picture of the intention of the Principles in reducing eDiscovery conflict. Additionally, note that the Principles highlight the need of involving eDiscovery expert assistance either in-house or outside. Acknowledging that all discovery processes will be imperfect does not relieve counsel attempting to assure that the proposed strategy is reasonable, proportional and defensible. The use of advanced analytical tools and technology are important steps in developing a defensible, cost effective eDiscovery strategy.