Catagory:Resources

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.
 

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July 2008.  Available for free download here.

Excerpt:

The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system.  This burden rises significantly in discovery of electronically stored information (“ESI”).  In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes – in some cases precluding adjudication on the merits altogether – when parties treat the discovery process in an adversarial manner.  Neither law nor logic compels these outcomes.

With this Proclamation, The Sedona Conference® launches a national drive to promote open and forthright information sharing, dialogue (internal and external), training, and the development of practical tools to facilitate cooperative, collaborative, transparent discovery.  This Proclamation challenges the bar to achieve these goals and refocus litigation toward the substantive resolution of legal disputes.

March 2008

Available for free download here.

From the Introduction:

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By Barbara J. Rothstein, Ronald J. Hedges, and Elizabeth C. Wiggins

Federal Judicial Center (2007)

This “Pocket Guide” identifies problems that recur during the course of electronic discovery, and presents management tools that federal judges may use for responding to them.  The 26-page publication may be downloaded from the Federal Judicial Center’s website, free of charge.

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A number of states are considering whether to adopt special court rules addressing the discovery of electronically stored information.  Here is a current list of those states that have published proposed rules amendments for public comment, with links to the relevant materials.

Alaska
Currently seeking public comment on proposed rules; deadline is Friday, 2/29/2008.
Request for Comments on Proposed Rule Changes 

California
Currently seeking public comment on proposed rules; deadline is Friday, 1/25/2008. 
Invitation to Comment 

Iowa
Period for public comment on proposed amendments closed on 5/1/2007.
Request for Public Comment Regarding Proposed Amendments to the Iowa Rules of Civil Procedure

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The National Conference of Commissioners on Uniform State Laws has approved its Uniform Rules Relating to the Discovery of Electronically Stored Information and recommended them for enactment in all the states.

The NCCUSL describes the Uniform Rules as follows:

The Uniform Rules Relating to the Discovery of Electronically Stored Information provides states with up-to-date rules for the discovery of electronic documents in civil cases.  The Uniform Rules provide procedures for parties in a civil case to jointly follow relating to a number of issues, including the preservation of the electronic information; the form in which the information will be produced; and the period of time in which the information must be produced.  The Uniform Rules limit the sanctions which may be imposed on a party for failure to provide electronic information that has been lost as the result of routine operation of an electronic information system, only if the system was operated in good faith.  The Uniform Rules address the unique difficulties in accessing some electronic information by providing certain restrictions on its discovery.  For instance, a party may object to discovery of electronically stored information on the grounds that the information is not reasonably accessible because of undue burden or expense.  However, the court may order discovery of such information if it is shown that the likely benefit of the proposed discovery outweighs the likely burden or expense, and may allocate between the parties the expense of conducting the discovery.

A version of the Uniform Rules without comments is available here.

In August 2006, the Conference of Chief Justices approved the Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information as a reference tool for state trial court judges faced by a dispute over e-discovery.

These Guidelines are intended to help in identifying the issues and determining the decision- making factors to be applied in the circumstances presented in a specific case. They should not be treated as model rules or universally applicable standards. They have been crafted only to offer guidance to those faced with addressing the practical problems that the digital age has created. The Conference of Chief Justices recognizes that the Guidelines will become part of the continuing dialogue concerning how best to ensure the fair, efficient, and effective administration of justice as technology changes. They should be considered along with the other resources such as the newly revised provisions on discovery in the Federal Rules of Civil Procedure and the most recent edition of the American Bar Association Standards Relating to Discovery. Although the Guidelines acknowledge the benefits of uniformity and are largely consistent with the revised Federal Rules, they also recognize that the final determination of what procedural and evidentiary rules should govern questions in state court proceedings (such as when inadvertent disclosures waive the attorney-client privilege) are the responsibility of each state, based upon its legal tradition, experience, and process.

SEDONA, AZ – The Sedona Conference®, the nation’s premier nonpartisan law and policy think tank, has announced publication of The Sedona Principles, Second Edition, Best Practices Recommendations and Principles for Addressing Electronic Document Production.  Building on the success of first edition of The Sedona Principles, which appeared in January 2004, the second edition has been eagerly anticipated by lawyers and judges across the country looking for guidance in the fast-paced world of electronic discovery.

The Sedona Principles, Second Edition, may be downloaded here free of charge.

Jonathan Redgrave, chairperson of the Steering Committee of The Sedona Conference® Working Group 1, which drafted both editions of The Sedona Principles, said “the second edition provides helpful and timely guidance for the issues and circumstances that the amended civil rules, by their nature, cannot address.”  He added, “we are very grateful for the contributions and thoughts of the literally hundreds of members of the working group that make this a consensus document reflecting views from a wide array of interests and specialties.”

Richard G. Braman, Executive Director of The Sedona Conference®, said that publication of the second edition “represents a new milestone in our efforts.  It reflects the fact that our Working Groups produce ‘living documents’ that are open to substantive revision as developments in our society and laws may require.  This evolution is in the grand tradition of the common law and also the mission of The Sedona Conference® to move the law forward in a reasoned and just way.”

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The Sedona Guidelines: Best Practice Guidelines & Commentary for Managing Information & Records in the Electronic Age is now available for download. This document, the second published by The Sedona Conference Working Group Series, addresses “questions related to the management of electronic information in organizations as a result of business, statutory, regulatory and legal needs. The subject of information management and record retention is of critical importance in the digital age and the subject of many treatises and publications, yet the members and participants of the Working Group believed there was a need to distill existing thoughts and, in doing so, reach across the boundaries of legal compliance, records management and information technology.” To view and download the complete report, click here.

The 2005 Socha-Gelbmann Electronic Discovery Survey Report has been released. The 2005 Survey examines the state of electronic discovery in 2004, through direct interviews and an online surveys of 69 consumers and providers of electronic discovery services, as well as website data from more than 200 organizations in the electronic discovery niche. It also compares this year’s results with results from the preceding two years, and makes projections for 2005 through 2007. For more information about the survey, or to purchase, click here.