In Part I and Part II of this series, we discussed the key takeaways from Principles 1-3 and 4-6, respectively, 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 7-9 of the Commentary.
Principle 7. A reasonable e-discovery 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.
Comment 7.a. Eliminating ESI that Is Cumulative or Duplicative
This principle is focused on striking the right balance between producing significant, unique, relevant ESI and holding back cumulative or duplicative ESI. To help achieve this goal, the Commentary suggests the use of various techniques, including de-duplication and email threading.
Comment 7.b. Eliminating ESI that Is Outside the Scope of Discovery
The Commentary proposes that in most cases, a culling process that removes a significant volume of irrelevant or duplicative information is reasonable, even if it also removes some relevant information. Obviously, it is best to reach an agreement on the culling strategy with the requesting party before proceeding.