In January 2017, The Sedona Conference Working Group on International Electronic Information Management, Discovery, and Disclosure (WG6) issued the much-anticipated International Litigation Principles on Discovery, Disclosure & Data Protection in Civil Litigation (Transitional Edition). This publication updates the 2011  International Litigation Principles, which preceded the 2013 Snowden revelations and the Schrems decision invalidating the U.S.-EU Safe Harbor.  It also incorporates adoption and implementation of the EU-U.S. Privacy Shield, and the approval of the EU General Data Protection Regulation (GDPR), which is set to replace the 1995 EU Data Privacy Directive in May 2018.  Many of these developments are consistent with the focus on “proportionality” of discovery in the 2015 amendments of the U.S. Federal Rules of Civil Procedure.

Given the complex and dynamic EU data protection  landscape – where the new Privacy Shield has not been tested, and before the GDPR has even taken effect, – WG6 has aptly designated this as a “Transitional” edition.  This edition provides interim best practices and practical guidance for courts, counsel and corporate clients on safely navigating the competing and conflicting issues involved in cross-border transfers of EU personal data in the context of transnational litigation and regulatory proceedings.  Following are the publication’s Six Transitional International Litigation Principles:


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The Sedona Conference Working Group on Electronic Document Retention & Production (WG1) has released its Commentary on Proportionality in Electronic Discovery. The public comment period on the Commentary closed on January 31, 2017. This Commentary was much anticipated given the revamping of Rules 26(b)(1) and 37(e) of the Federal Rules of Civil Procedure in December 2015, which directly affected the scope of eDiscovery in federal litigation. The 2015 amendments were aimed at curbing gamesmanship and abuses in eDiscovery by elevating the importance of “proportionality” as the guiding principle governing the entire discovery process and by setting forth the framework for addressing the loss of electronically stored information (ESI) that was required to be preserved.

Under the amended Rule 26(b)(1), “parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case….” (emphasis added). Rule 26(b)(1) also now includes the considerations that bear on proportionality, which were moved from the previous Rule 26(b)(2)(C)(iii), rearranged and expanded. The proportionality factors that courts will take into account are as follows: (1) the importance of the issues at stake; (2) the amount in controversy; (3) the parties’ relative access to relevant data; (4) the parties’ resources; (5) the importance of discovery for resolution; and (6) the burden or expense relative to benefit.

The amended Rule 37(e) provides guidance on the scope of the preservation effort that the court expects from litigants. Specifically, amendments to Rule 37(e) affected judicial analysis of sanctions for the loss of ESI (1) that “should have been preserved” in the anticipation or conduct of litigation (2) because a party failed to take “reasonable steps” to preserve it and (3) that cannot be restored or replaced through additional discovery. Upon making this finding, a court has to conduct additional analysis, the goal of which is to differentiate “bad faith” conduct from mere negligence, and order sanctions in accordance with the level of egregiousness. Under the amended Rule 37(e), courts will focus on a party’s intent to deprive its opponent of the benefits of the lost ESI and the resulting prejudice to the opponent. Where the court finds “bad faith” conduct, it may order the harsher sanctions, including adverse inference instruction, default judgment or dismissal. However, only measures limited to curing the prejudice are appropriate for cases where culpability is lacking.

Parties engaged in or preparing for litigation should consider how these amendments impact their overall litigation strategy, as well as their eDiscovery process. While the concepts of proportionality and good-faith discovery conduct are anything but new, the 2015 amendments provide the parties and courts with a more robust and defined framework for their application.

To help federal litigants and courts apply the new amendments in designing the eDiscovery process and resolving eDiscovery disputes, the Commentary on Proportionality offers Six Principles for consideration. The following are the key takeaways.


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Last month, The Sedona Conference released the public comment version of The Sedona Conference Data Privacy Primer, a comprehensive catalog of U.S. data privacy issues, legislation, and resources, designed to provide “immediate and practical benefit” to organizations and practitioners dealing with privacy issues. The Primer is a work product of The Sedona Conference Working

In Part I, Part II, and Part III of this series, we discussed the key takeaways from Principles 1-3, 4-6, and 7-9, 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.

In today’s installment, we discuss the key takeaways from the remaining principles, Principles 10-13 of the Commentary.

Principle 10. A party may use any reasonable process, including a technology-assisted process, to identify and withhold privileged or otherwise protected information. A party should not be required to use any process that does not adequately protect its rights to withhold privileged or otherwise protected information from production.

Parties have a right to not reveal their privileged or otherwise protected information, and attorneys have a duty to protect such information belonging to their clients. The need to design an eDiscovery process that appropriately identifies and withholds privileged information is one of the highest priorities during any review and production undertaking. This is so because a party wishing to rely on the “claw-back” provisions of Federal Rule of Evidence 502(b) in case of inadvertent disclosure of privileged information would need to demonstrate that it “took reasonable steps to prevent disclosure.”

When it comes to privilege review, reasonableness and proportionality are evaluated depending on the circumstances at hand, including time constraints, resource limitations, the volumes of ESI, the complexity of the task, and the inevitability of human error. Case law suggests, for instance, that failing to review a sample of “non-hits” (documents that were not responsive to the search terms) to test the effectiveness of the selection criteria developed to identify privileged material, would be inherently “not reasonable.” See Victor Stanley Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (2008).


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