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” (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 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.” Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 436 (S.D.N.Y. 2004). 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 Thirteen Principles designed to establish the parameters for reasonable and defensible eDiscovery process within a given matter. Today, we will discuss the key takeaways found in Principles 1-3. We will address the remaining Principles over the next few days.Continue Reading Key Takeaways from The Sedona Conference Commentary on Defense of eDiscovery Process: Principles 1-3 (Part I)