The Sedona Conference® Commentary on Preservation, Management and Identification of Sources of Information that are Not Reasonably Accessible
July 2008. Available for free download here.
From the Preface:
This Sedona Conference® Commentary focuses on the decision making process relating to the preservation of sources of electronically stored information that may contain discoverable information that is “not reasonably accessible.” The “reasonable accessibility” distinction – introduced by the 2006 Federal E-Discovery Amendments as part of the “two-tiered” approach to discovery – plays a role in, but is not wholly determinative of, preservation obligations.
The central dilemma of preservation planning in the absence of the opportunity to discuss discovery requests or reach prior agreement among the parties is predicting exactly which sources of information may actually be discoverable in a given case. No bright-lines exist. The primary duty is to make reasonable assessments in good faith.
To assist litigants and the courts, we have developed the following Guidelines that summarize our recommendations for making those assessments. The Guidelines also discuss how parties may “identify” inaccessible sources that will not be preserved and emphasize the value of cooperative efforts to reach agreements on preservation topics in dispute that reflect the unique demands of each case.