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The Third Edition of the Sedona Conference Principles

The final pre-publication version of the Third Edition of the Sedona Conference Principles was released this week. The third edition is the first new one since 2007. The introduction to the new edition provides an overview of the changes made to the principles.

The second edition was released in 2007, the same year the iPhone became available. 10 years later there is no longer debate about whether or not meta data must be produced, and restoring data from back-up tapes is no longer a key concern.

The amendments to the Federal Rules of Civil Procedure in 2015 are reflected in the new edition of the Sedona principles with the increased emphasis on cooperation and proportionality. The principles continue to stress the importance of cooperation in the discovery process, announced in the Sedona Cooperation Proclamation of 2008.

The new edition uses the term ESI throughout rather than using the various references to data, evidence, documents and information in the previous edition.

Principle 2 now uses the term 'balance' in referring how to apply the proportionality factors. Proportionality is now applicable to all steps in the discovery process, including preservation.

Principle 4 now uses the word 'specific' instead of 'clear' with respect to tailoring discovery requests under Rule 26(g).

Principle 5 has been altered to state that preservation should pertain to information relevant to claims and defenses, and that the preservation duty is trigger when litigation is reasonably anticipated.

Principle 8 was revised to reflect the blurring of the line between active and inactive data, and shift away from analyzing what is reasonably accessible to considering what is most readily accessible.

Principle 10 was updated to reflect that all parties have obligations to privileged and protected information, and that non-disclosure agreements may restrict the use of private data.

Principle 12 was modified to move the focus away from the use of metadata to access, display and search the same information as the producing party, and towards its production in the form in which it is ordinarily maintained.

Principle 13 was changed so, "that the costs of 'preserving and producing' (rather than 'retrieving and reviewing') 'relevant and proportionate' ESI should be borne by the responding party."

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