<i>Legal Tech</i><br>Sedona Conference Releases Finalized Third Edition of the Sedona Principles

During the drafting process, there was contention among the parties involved, those who work on the drafting team said. But ultimately, Sedona feels that the process has led to an overall consensus — one that may not be in line with the full wishes of all parties involved, but that balances those needs in a way that best pushes the law forward.

“Our first guideline in the revision process was first, do no harm,” Kenneth Withers, deputy executive director of the Sedona Conference, told our ALM sibling Legaltech News. “The reason for that is because people have really built their practices, and judges have relied, on the Principles for years. So we can't willy-nilly pop into a Principle and say, 'Hey, all this precedent is out the window.'”

But, he added: “At the same time, we do have to recognize that the rules have changed, technology has changed, we've learned a lot, practices have changed. So what we have to do is strike a balance.”

The Biggest Changes

Just like previously, the third edition of the Sedona Principles are broken into 14 “principles,” intended to be the bedrock statements that the organization says “embody the consensus view of WG1 on a reasonable and balanced approach to the treatment of electronically stored information in the legal process.” Similar to before, these principles range in topic from how electronic information is handled in relation to other information (Principle 1) to the differences between responding and requesting parties (Principles 6 and 7) to sanctions and remediation (Principle 14).

However, although the principles are intended to be evergreen, there are some notable changes that those familiar with the second edition may wish to engage.

The first is in Principle 2, dealing with the concept of proportionality. Those familiar with the 2015 version of the Federal Rules of Civil Procedure (FRCP) may recognize proportionality as one of the major concerns. Eric Mandel, a member of the Sedona Principles drafting team and the Sedona Working Group 1 Steering Committee, says that Principle 2 was updated to align with this new vision.

“We reformulated it to align with an updated view of proportionality,” Mandel explains. “The language of the principle changed, and every one of the comments was essentially rewritten. In 2006, proportionality was not as forefront as it became over time, which was particularly reflected in the 2015 amendments.”

Similarly, Principle 3 was updated to conform to modern views on cooperation — particularly from the Sedona Conference's own 2008 Cooperation Proclamation, which itself has been cited in numerous court decisions.

“We stopped the [phrase], 'if and when ESI show up,' because that's not the case anymore,” Mandel explains. During the drafting of the second edition, he notes, some litigators were hesitant that e-discovery was a fad and a small part of discovery. That view, however, has not played out. “I think we were trying to be diplomatic to the larger litigation community … but now we know that ESI is here to stay. It's not going anywhere, it is a fundamental part of discovery.”

But not all principles conform neatly to preexisting documents. For instance, one discrepancy can be found in the revised Principle 14, where Sedona takes a stronger view on “incompetent spoliators” than even the 2015 FRCP amendments. Judge Andrew Peck, U.S. District Judge for the Southern District of New York and the judicial participant on the Sedona drafting team, says that under one reading of the new FRCP Rule 37, there should be no remedy for intentional spoliation, but Sedona took the position that there should be something more.

“To a certain extent, it is a fraud on the court, and the court should have the power and does have the power to do something about that,” Judge Peck explains. He also notes that there exists an interesting debate whether a judge's inherent authority to sanction exists under Rule 37(e), this amended principle could help judges decide that they can do something about these incompetent spoliators.

Finally, there is the issue of simply getting the principles up-to-date with new technology. Principle 8 concerns possession, custody and control of data, and previously, it made a distinction between active data and inactive data, such as that found on backup tapes. These days, though, backup tapes, while still around, have fallen out of favor as data can be found in many more places like the cloud, email servers and the like.

Now, explains Martin Tully, a partner at Akerman and a member of the drafting team, the revised Principle 8 looks at the issue on a proportionality continuum: “What is the ease with which you can access ESI versus what is the incremental benefit versus the escalating costs, instead of assuming that certain categories of ESI are not going to be readily accessible?”

The Fight for Consensus

These changes aren't everything new that you'll find in the third edition of the Sedona Principles, as the commentary accompanying the principles was also largely changed. It was this commentary that proved to be a point of contention for many Sedona onlookers, such as the fight over Principle 6's commentary that Legaltech News noted in August.

Judge Peck says Principle 6 is exemplary of the struggles that faced the drafting team as it attempted to revamp the principles for a modern age. The team, in his opinion, “did a good of job of threading the needle so that we're encouraging cooperation while not taking away from the bedrock Principle 6.”

“The plaintiff and the defendant comments, like on the commentary on Principle 6, balanced out. What one side thought was terribly one-sided was counterbalanced by the other side finding something else in there that they thought was too much in favor of the other side,” he says.

“Balance” is a common theme when speaking with the Sedona Principles drafting team. The document took more than four years to come together, in large part because of the number of voices involved in the new Principles' creation, Sedona's Withers says.

“This thing has been through the ringer. It's probably the most picked apart document in our history, and appropriately so,” he explains.

That process of picking apart the document involved multiple in-person meetings; input from judges, the plaintiffs' bar, the defense bar, and e-discovery companies alike; and of course this year's earlier comment period. The ultimate goal, Withers says, is trying to come a “consensus” through conversation and cooperation.

“We're not taking votes; we're not trying to develop political positions. We're actually trying to reach solutions,” he notes. “And by insisting on consensus, as opposed to just majority vote taking, it forced people to think outside their own boxes and listen to each other more and try to come up with solutions that everybody could sign onto.”

But what does consensus actually mean? Three different members of the drafting team told LTN some form of the phrase “consensus is not unanimity,” meaning that Sedona expects some interested parties to be unhappy with parts of the final outcome.

“The points that people disagreed about were very different; in other words, the disagreements were evenly distributed. Every interest group had 85% that they agreed with, but still had a long list [of disagreements],” Withers says. “And we considered that as long as we're pissing off every equally, we must be on the right road.”

Alongside the Principles, Sedona is publishing a cover letter that explores the decisions made based off of public comments. Each member of the drafting team that spoke with LTN emphasized that each comment was heard and considered, even if not ultimately incorporated into the final version.

How the Principles are Used

Perhaps you're new to litigating and understanding e-discovery, and maybe you're new to the Sedona Principles in general and how they can be used. In that case, you're not alone — even some jurists are actively working to become more familiar with Sedona's guidance.

If you're in that position, Judge Peck suggests: “There is nothing better than good lawyering, and that includes educating judges in a respectful way. If counsel are familiar with the Principles and are not sure if the judge in front of them knows who Sedona is or what the Principles are, it's important to bring that to the court's attention.”

By now, he says, “a lot of judges are at least familiar with the Sedona Conference,” which makes it powerful in how it can be applied: “You know the old EF Hutton commercial … 'When EF Hutton talks, everyone listens'? Well I think when the Sedona Conference speaks, everyone will listen and [does] listen.”

It's the bipartisan nature of the document that has allowed it to be such a powerful tool at Tully's own practice at Akerman. He says that he has used the Sedona Principles to point out unreasonable positions or start important discovery discussions. In one case, he says, he even informed an opposing party that they were at risk of sanctions through the Principles and the FRCP, avoiding a messy dispute before even meeting the judge.

“The goal is to provide guidance — and this has been my own personal experience as a practitioner, oftentimes I've been able to solve discovery disputes or avoid them altogether by having some authoritative guidance like the Sedona Principles available,” Tully explains.

Withers agrees, adding that Sedona is already receiving word of commentary being written about the finalized Principles even before their official release. He notes that one, titled “De-Constructing Discovery About Discovery” from Judge Craig Shaffer of U.S. District Court in the District of Colorado, was scheduled to be released November 1.

“We think that we have given them the tools by which they can analyze the major issues that are likely to come up in discovery,” Withers says. “We are not giving them checklists and how-tos. We're giving them a framework through which to analyze their situation, but most importantly a framework to negotiate.”

Mandel adds that he sees the new edition of the Principles to be an extension of Sedona's stated vision — moving the law forward in a reasoned and just way. He expects that the Principles will be debated, but that the conversation will lead to more adoption of firm guidelines and better understanding of e-discovery law.

“The fact that you're seeing people writing opposing pieces who are known to present a particular constituency, we're perfectly fine with that. At the end, what you're seeing is that we are focused on being the honest broker, even if it's painful. We are willing to suffer the slings and arrows of our membership, where the supermajority of the group feels we are moving the law forward. And we hope that will be considered.”

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Zach Warren is the Editor-in-Chief of Legaltech News, an ALM sibling of Cybersecurity Law & Strategy. Contact him at [email protected].