February 2017 Bar Bulletin
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February 2017 Bar Bulletin

Key Takeaways from The Sedona Conference Commentary on Defense of eDiscovery Process: Principles 1–3

(First of Four Parts)

By Natalya Northrip


The Sedona Conference Working Group on Electronic Document Retention & Production (WG1) has proposed a set of principles and practical guidance for the eDiscovery process, in its recent publication, the Commentary on Defense of Process: Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process.1 The Commentary seeks to address what parties can do to avoid, or at the least prepare for, challenges to an eDiscovery process they apply in a given matter and how courts should address discovery disputes. The public comment period on the Commentary has now closed.

By focusing on the defensibility, the Commentary endeavors to provide guidance to parties and their counsel who design and execute eDiscovery plans and processes and who may be called upon to defend the appropriateness and efficacy of their discovery efforts. Indeed, considerations of defensibility of eDiscovery process underlie every decision in-house counsel and their eDiscovery attorneys make, from pulling the trigger on issuing a legal hold notice to completing the last production in the case.

The responsibility for the eDiscovery process is a shared one, falling “on counsel and client alike. At the end of the day, however, the duty to preserve and produce documents rests on the party.”2 Failure to fulfill this responsibility, which by nature lacks bright-line rules, comes with potential for substantial monetary and case-destroying sanctions.

The Commentary proposes 13 Principles designed to establish the parameters for reasonable and defensible eDiscovery process within a given matter. This month, we will discuss the key takeaways found in Principles 1–3. We will address the remaining Principles over the next few issues.

Principle 1. An e-discovery 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 e-discovery process, parties and the courts consider issues of proportionality, including the benefits and burdens of a particular process.

Comment 1.a.
Perfection Is Not Required

This Principle stands on the proposition that only reasonable effort is required and that more than one process can be deemed reasonable in a given case. And, reaching back to the first-year law school Torts class, reasonable people can disagree on what is reasonable.

Rule 26(g) of the Federal Rules of Civil Procedures requires parties to conduct a “reasonable inquiry” when propounding and responding to discovery in order to determine that their disclosures, requests, or responses are warranted by existing law, not interposed for any improper purpose, and are neither unreasonable nor unduly burdensome or expensive, “considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.”

Reasonableness of inquiry required by Rule 26(g) is judged by what is reasonable under the circumstances. The Commentary states that to be reasonable, an eDiscovery process “need not be perfect, nor even the best available option, and it does not have to identify all discoverable ESI.” Furthermore, an eDiscovery process “is not inadequate simply because an opposing party can demonstrate that a more accurate or complete process exists.”

Comment 1.b. Proportionality
Is Central to Reasonableness

This proposition is helpful in those cases where the requesting party asks for the production of forensic images of everything under the sun plus the backup tapes, in a case worth $10,000.

The Commentary makes a strong point that proportionality does not exist in a vacuum, but that it is rather tied to the circumstances of the case, evaluated against the factors in Rule 26(b)(1), which states that parties may obtain discovery regarding any non-privileged matter “that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.”

The Commentary illustrates this point through a hypothetical of a contract dispute over $50,000 in allegedly defective merchandise that was returned by a retailer to its supplier. In this hypothetical, the supplier identified relevant ESI by asking the general counsel, who negotiated the contract, and the account representative for the retailer, to search their own email files for emails related to that retailer, by using reasonable search terms discussed between outside counsel and the two custodians.

The Commentary argues that this process is reasonable under the circumstances, given the modest value of the litigation, the high cost of a more comprehensive search, and the low likelihood that a more comprehensive search would identify additional unique relevant ESI.

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