3rd Edition of the Sedona Principles - Bye Bye Back-up Tapes, Hello Phase Gates

Today the public comment version of the third edition of the Sedona Principles: Best Practices, Recommendations & Principles for Addressing Electronic Document Production dropped here, https://thesedonaconference.org/publication/The%20Sedona%20Principles . Key updates have been made to the following principles:

Principle 5 - The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that is expected to be relevant to claims or defenses in reasonably anticipated or pending litigation. However, it is unreasonable to expect parties to take every conceivable step or disproportionate steps to preserve each instance of relevant electronically stored information.

Note that the phrase, "be relevant to claims or defenses", and "or disproportionate steps" are new insertions to Principle 5 from the last edition of the Principles published in 2007, in response to the amendments of the Federal Rules of Civil Procedure in 2015. The new edition points out the reduced reliance by companies on backup tapes with the widespread implementation of dual, mirrored live systems. Hence the position that it's unreasonable for parties to take every conceivable step may no longer need to be stressed as strongly, as this was added to give businesses an out when facing the prospect of preserving data from voluminous backup tapes. The revised version of the principles includes a gentle suggestion to move away from the reliance on back-up tapes, "Parties that use backup tapes for archival purposes should be aware that these practices may lead to substantially higher costs for evidence preservation and production in connection with litigation. Parties seeking to preserve ESI for organizational purposes or litigation should consider employing means other than traditional disaster recovery backup tapes."

Principle 8 - The primary sources of electronically stored information to be preserved and produced should be those readily accessible in the ordinary course. Only when electronically stored information is not available through such primary sources should parties move down a continuum of less accessible sources until the information requested to be preserved or produced is no longer proportional.

". . . those readily accessible in the ordinary course" replaces the phrase "active data and information" from the 2007 edition. The second sentence replaces the prior statement that, "Resort to disaster recovery backup tapes and other sources of electronically stored information that are not reasonably accessible requires the requesting party to demonstrate need and relevance that outweigh the costs and burdens of retrieving and processing the electronically stored information from such sources, including the disruption of business and information management activities." The Sedona principles now recommend looking for discoverable ESI through a variety of sources that become less and less accessible rather than drawing a distinction between active data and back-up tapes. The Sedona conference reacts to the requirement of proportionality under FRCP 26, and suggests that the after data preserved in the ordinary course of business has been reviewed, the party should go through a series of 'phase gates', until the results are no longer worth effort. Near-line email archives and individual custodian hard drives are given as examples of intermediate sources between primary email systems and back-up tapes.

Principle 12 -The production of electronically stored information should be made in the form orforms in which it is ordinarily maintained or that is reasonably usable given the natureof the electronically stored information and the proportional needs of the case.

The 2007 edition of the Sedona Princples stressed the need for receiving parties to have the same ability to access, search and display produced information. The new edition notes how changes in technology have made providing the same ability impractical, or impossible and instead uses the phrase, "a functionally adequate ability". A document produced from a 'records management database system' is deemed to meet the provision of FRCP 34 requiring data to be produced in the form in which it is ordinarily maintained.

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