In Part I of this series, we discussed the key takeaways from Principles 1-3 of The Sedona Conference WG1’s “Commentary on Defense of Process: Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process” (available for download here). 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 following are the key takeaways from Principles 4-6 of the Commentary.

Principle 4. 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-privileged information about that process.

Comment 4.a. Benefits of Sharing Information

This principle is based on the importance of cooperation in the discovery process. This includes disclosures on the specifics of discovery processes, as contemplated by Rule 26(f) of the Federal Rules of Civil Procedure, and as encouraged or required by numerous courts.

Often parties are unwilling to share details about their discovery process until and unless the complaining party can show to the court that reasonable grounds exist for questioning some aspect of that process. This strategy sometimes results in nothing more than a short-term benefit, since courts typically require some disclosure on these issues once a discovery-dispute motion is filed.

The Commentary points out that voluntary disclosures of such information actually may be in the disclosing party’s self-interest, as it may help address concerns of the challenging party and, thus, eliminate unnecessary motions, hearings, and discovery about discovery. Furthermore, by reaching an agreement on discovery process, the responding party greatly reduces the chances that the requesting party will later complain about alleged deficiencies in the process. A good time to make some of these disclosures and to seek an agreement on the process is a Rule 26(f) conference.

Comment 4.b. Scope of Information Exchange

Although it is beneficial to disclose information about the eDiscovery process, counsel should be mindful of their duty to protect client confidentiality and to diligently represent the client’s position. When deciding how much information to disclose, the Commentary suggests that a party consider the following factors:

  • The extent to which the information about the process is discoverable, or is otherwise likely to become apparent to the adversary;
  • The extent to which the processes being employed are untested or are at risk of being rejected if challenged;
  • The extent to which rejection of the process could result in significant delay or additional expense in resolving the dispute on the merits;
  • Whether the process being employed could lead to an irreversible loss of discoverable information;
  • Whether information about the process is protected by the attorney-client privilege or the work-product doctrine; and
  • The extent to which disclosure is likely to lead to a more just, speedy, and inexpensive determination of the matter.

By way of illustration, the Commentary suggests that it would be reasonable for a party to disclose, during meet and confer, its custodian list, date range, and search terms it intends to use to determine the ESI that it reviews and to seek an agreement on these items. However, the responding party could justifiably refuse to comply with the requesting party’s request to disclose technical details about the search and culling methodologies, such as the list of system file types that are not indexed, the “stop words” that are not included in the search index, and the exception reports showing which files were not successfully processed.

The Commentary suggests the following non-exhaustive list of topics appropriate for disclosure, depending on the circumstances:

  • The identification of data sources that will be subject to preservation and discovery;
  • The relevant time period;
  • The identities of particular individuals likely to have relevant ESI;
  • The form or forms of preservation and production;
  • The types of metadata to be preserved and produced;
  • The identification of any sources of information that are not reasonably accessible because of undue burden or cost, such as backup media and legacy data;
  • Use of search terms or other methods of reducing the volume of ESI to be preserved or produced; and
  • Issues related to assertions of privilege and inadvertent production of privileged documents.

Principle 5. When developing and implementing an e-discovery 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 e-discovery may be helpful in demonstrating that the process was reasonable.

This principle stresses the importance of documenting key decisions made during an eDiscovery process to help demonstrate good faith, reasonableness, and due diligence in the event of a later challenge. A good “paper trail” is particularly important in the context of complex litigation, large volumes of ESI, and where the client, outside counsel, and an outside eDiscovery vendor are all engaged on different aspects of the eDiscovery process.

While not every decisions needs to be documented, the Commentary proposes that documentation may be useful for the following aspects of the eDiscovery process:

  • The procedures followed for satisfying the party’s preservation obligation, including the distribution list and the legal hold notice itself, and any instructions or guidance provided to the person(s) responsible for preserving ESI covered by the legal hold;
  • A description of the portions or aspects of a client’s IT systems that are likely to have discoverable ESI;
  • Records of interviews with key custodians to identify potential sources of discoverable information;
  • Sources of information considered for collection, including those ultimately not collected, and the reasons therefore;
  • Chain-of-custody records for collected documents;
  • Data processing specifications for data collected for review;
  • Search and culling methods employed, including keywords, date restrictions, TAR protocols, and other culling parameters and filters;
  • Procedures, instructions, and other information used for training document reviewers on how to make determinations of relevance, confidentiality, or privilege;
  • Sampling or other validation methods used to test the efficacy of any search, retrieval, or review methodologies; and
  • The substance of any meet-and-confer efforts with opposing counsel, including any agreements reached.

Principle 6. An e-discovery process should include reasonable validation.

Validation is important to test any design flaws in the as-executed eDiscovery process and to reveal any flaws that may have been introduced during its implementation. The Sedona Conference has addressed the concept of validation in another paper, Commentary on Achieving Quality in the E-discovery Process, 15 Sedona Conf. J. 265, 279-82 (2014).

As with other eDiscovery efforts, steps undertaken to validate the results of a process should be reasonable and proportionate to the expected benefits of that validation. The amount of effort and the level of formality of the validation process will depend on the complexity of the matter. Both excessive and insufficient validation have their pitfalls and parties should attempt to strike the appropriate balance between the increase in defensibility and the time and cost required to gain that increase.

We will discuss the key takeaways from the remaining Principles over the next few days.