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.
 

The Guidelines are:

Guideline 1.  Where litigation is anticipated but no plaintiff has emerged or other considerations make it impossible to initiate a dialogue, the producing party should make preservation decisions by a process conforming to that set forth in the Decision Tree in Figure 1.

Guideline 2.  As soon as feasible, preservation issues should be openly and cooperatively discussed in sufficient detail so the parties can reach mutually satisfactory accommodation and also evaluate the need, if any, to seek court intervention or assistance.

Guideline 3.  In conjunction with the initial discussions or where appropriate in the response to discovery requests, parties should clearly identify the inaccessible sources reasonably related to the discovery or claims which are not being searched or preserved.

Guideline 4.  A party should exercise caution when it decides for business reasons to move potentially discoverable information subject to a preservation duty from accessible to less accessible data stores.

Guideline 5.  It is acceptable practice, in the absence of an applicable preservation duty, for entities to manage their information in a way that minimizes accumulations of inaccessible data, provided that adequate provisions are made to accommodate preservation imperatives.

Guideline 6.  An entity should encourage appropriate cooperation among legal and other functions and business units within the organization to help ensure that preservation obligations are met and that resources are effectively utilized.