What is LawBrain?
It's a living legal community making laws accessible and interactive. Click Here to get Started »

Sedona Principles

From lawbrain.com

The Sedona Principles are a set of 14 principles that were developed by members of the Sedona Conference® in order to apply the basic principles of discovery to the new medium of ESI.  These principles are the basis for the 2006 amendments to the Federal Rules of Civil Procedure with respect to discovery of "electronically stored information" (ESI) in civil litigation at federal courts.

  • This LawBrain entry is a stub. Please help us expand it! Click the 'Edit' tab above to add to this page.

Contents

Overview

On December 1, 2006, new amendments to the Federal Rules of Civil Procedure, concerning the discovery of “electronically stored information” (ESI) in civil litigation at federal courts, took effect. Amendments and additions were made to Rules 16, 26, 33, 34, 37, and 45, as well as Form 35.[1] These new rules on electronic discovery for ESI were based on principles, known as the Sedona Principles, developed by the Sedona Conference®.  The Sedona Principles,[2] now in its second edition, sought to apply the principles of discovery to the new medium of ESI. These principles were formulated after years of discussion, analysis, and writing by those individuals involved in the Sedona Conference®.

The Principles

The Sedona Principles consist of a set of 14 principles that were considered, by a Sedona Conference® Working Group, to be “a reasonable and balanced approach to the treatment of electronic data.”  The Sedona Principles[3] include:

  • Principle 1: Electronically stored information is potentially discoverable under Fed. R. Civ. P. 34 or its state equivalents. Organizations must properly preserve electronically stored information that can reasonably be anticipated to be relevant to litigation.
  • Principle 2: When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of the technological feasibility and realistic costs of preserving, retrieving, reviewing, and producing electronically stored information, as well as the nature of the litigation and the amount in controversy.
  • Principle 3: Parties should confer early in discovery regarding the preservation and production of electronically stored information when these matters are at issue in the litigation and seek to agree on the scope of each party’s rights and responsibilities.
  • Principle 4: Discovery requests for electronically stored information should be as clear as possible, while responses and objections to discovery should disclose the scope and limits of the production.
  • Principle 5: The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that may be relevant to pending or threatened litigation. However, it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant electronically stored information.
  • Principle 6: Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
  • Principle 7: The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.
  • Principle 8: The primary source of electronically stored information for production should be active data and information. Resort to disaster recovery backup tapes and other sources of electronically stored information that are not reasonably accessible requires the requesting party to demonstrate need and relevance that outweigh the costs and burdens of retrieving and processing the electronically stored information from such sources, including the disruption of business and information management activities.
  • Principle 9: Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.
  • Principle 10: A responding party should follow reasonable procedures to protect privileges and objections in connection with the production of electronically stored information.
  • Principle 11: A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data reasonably likely to contain relevant information.
  • Principle 12: Absent party agreement or court order specifying the form or forms of production, production should be made in the form or forms in which the information is ordinarily maintained or in a reasonably usable form, taking into account the need to produce reasonably accessible metadata that will enable the receiving party to have the same ability to access, search, and display the information as the producing party where appropriate or necessary in light of the nature of the information and the needs of the case.
  • Principle 13: Absent a specific objection, party agreement or court order, the reasonable costs of retrieving and reviewing electronically stored information should be borne by the responding party, unless the information sought is not reasonably available to the responding party in the ordinary course of business. If the information sought is not reasonably available to the responding party in the ordinary course of business, then, absent special circumstances, the costs of retrieving and reviewing such electronic information may be shared by or shifted to the requesting party.
  • Principle 14: Sanctions, including spoliation findings, should be considered by the court only if it finds that there was a clear duty to preserve, a culpable failure to preserve and produce relevant electronically stored information, and a reasonable probability that the loss of the evidence has materially prejudiced the adverse party.

References

  1. http://www.ediscoverylaw.com/2006/12/articles/news-updates/ediscovery-amendments-to-the-federal-rules-of-civil-procedure-go-into-effect-today/
  2. http://www.thesedonaconference.org/content/miscFiles/TSC_PRINCP_2nd_ed_607.pdf
  3. http://www.thesedonaconference.org/content/miscFiles/TSC_PRINCP_2nd_ed_607.pdf

External Links

Related Resources on FindLaw

Related Blogs on FindLaw



                                                                                Web Services by Yahoo!

    See Also

    Contributors

    FindLaw Michelle, FindLaw Nira