There are those among you, I know, who glance at the heading and opening paragraph of these posts and decide not to read those which do not relate to your own jurisdiction. That is understandable in many cases, but the recent release of the Third Edition of the Sedona Principles has value beyond the US and the Federal Rules of Civil Procedure.
This is a public comment version, with comments invited by 30 June 2017. Its full title is Best Practices, Recommendations and Principles for Addressing Electronic Document Production and, while some of its provisions are expressly rooted in particular Federal rules, the Principles (whether with or without a capital P) have application almost anywhere which requires discovery of electronic documents.
The extent to which the Sedona principles are deemed authoritative may be seen in the opinion of US Magistrate Judge Andrew Peck in Hyles v New York City which I wrote about here. The plaintiffs wanted the court to impose the use of technology-assisted review on the defendants. Judge Peck is the leading judicial authority on the use of TAR and you might expect that if any judge was going to order its use, it would be him.
Instead, he said this:
The Court would have liked the City to use TAR in this case. But the Court cannot, and will not, force the City to do so. There may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR. We are not there yet. Thus, despite what the Court might want a responding party to do, Sedona Principle 6 controls. Hyles’ application to force the City to use TAR is DENIED.
In other words, Judge Peck deemed the Sedona Principles to be so authoritative that they guided his decision in the absence of either a rule or case law to the contrary and despite his own preference.
Principle 6 states:
Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
In my article on Hyles, I suggested that a case managing judge of England and Wales would not be bound by any such restraints if the opposing party (or the court itself for that matter) thought there was a better way of proceeding – “better” meaning more proportionate, with all the implications that come from weighing cost, speed and efficiency against the risk of documents being missed. My article TAR-red with the same brush in the US and Ireland has a section called Reasons why the court must sometimes be involved which covers this apparent subversion of a party’s right to do what it thinks right subject to subsequent challenges.
I bring this point in to show that the express words of any one of the Sedona Principles might not play well in other jurisdictions. That does not undermine the value of most of the rest of them (and the accompanying commentaries) in other courts.
The Sedona Conference pioneered the idea that it is worth having statements of best practice to fill the gaps in the rules; Canada long ago adopted its own version, the Sedona Canada Principles; Ireland has the Good Practice Discovery Guide; in England and Wales, TeCSA (Technology and Construction Solicitors Association) has an eDisclosure Protocol Pack including an Introduction, an eDisclosure Protocol, a set of Guidelines and a Guide to eDiscovery.
The idea in all these places is to pool the knowledge of people with experience and make it available to others in a form which is both authoritative and acceptable. Principles from a body with the gravitas and reputation of the Sedona Conference may be cited with confidence before a court as evidence of the best way of doing things, either to buttress a party’s proposed approach or as part of a challenge to the opposition’s approach.
The TeCSA Protocol is used outside the court for which it was intended – that was the forum which saw the greatest need for standards, best practices and principles, but they travelled well between courts, just as the Sedona Principles travel well between jurisdictions with appropriate adjustments to reflect local rules.
One of the primary purposes of these Guides, Principles or whatever is that they give an opportunity to try things out before possible incorporation into the rules in due course. It is no small thing to change a rule or a practice direction. A relatively informal guide can be altered with experience.
There is nothing trivial about the alterations made to the Sedona Principles – it is clear that a great deal of work from a number of very skilled and committed people went into the revisions. I do not intend to summarise or comment on them but refer you instead to Ralph Losey’s article here which includes a helpful section showing what has been removed, added or changed.
Enormous thanks are due to the those who gave so much time to drafting the Principles. As I say, comments are invited by 30 June; they should be sent to firstname.lastname@example.org