Don’t Be Hasty: Sedona Principles Released for Public Comment

Created on April 21, 2017

E-Discovery Counsel

Top 10 E-Discovery Cases of 2016

Recently, the Sedona Conference released the long-awaited public comment version of the Sedona Principles.   When I say, “long-awaited,” I mean the discussions about a rewrite started in 2010!  Efforts on the current draft began in 2012.  The timeline for delivering this document calls to mind scenes from the movie series, “The Lord of the Rings,” in which the Ents appear.  The Ents are giant creatures resembling living, sentient trees.  Treebeard, one of the leaders of the Ents, proclaims that Ents don’t speak unless there is something important to say.  He also points out that decisions are arrived at by consensus, and that it takes a “long time to say something in old Entish,” so decisions for change and acting are a long time coming.

The importance of Sedona Conference publications can be measured in how the materials are used -- the first edition of the Principles began being cited by federal courts as early as 2003, months before the official publication.   The Principles have continued being cited in significant e-discovery cases over the years.  In addition, the Sedona Conference plays an important role in setting standards for the industry.  Members of the Sedona Conference were deeply involved in both the 2006 and 2015 amendments to the Federal Rules of Civil Procedure (FRCP), providing commentary and leadership.

Much like the Ents, the Sedona Conference operates by consensus of its membership, which cuts across the industry.  Members of the bench, practitioners (in-house counsel and law firms), and service and software providers contribute a diverse set of experiences and viewpoints to the materials generated.  This diversity and expertise leads to intense debate before consensus is reached on any given point.  This process, though, lends to the credibility and wide acceptance of the output.  Getting there, I suspect, has been a trial for the drafting committee, all of whom should be thanked for their persistence and congratulated on the quality of the present document.    

The third edition, like its predecessor, contains fourteen core principles which have withstood the test of time.  Changes have been made to reflect e-discovery case law, changes to the FRCP, and advances in technology.  Some change reflects that presumptions, which although novel when the first edition was published, are now widely accepted by practitioners. 

The document, while long, is well organized.  For those familiar with the second edition, a summary of the changes to each principle is presented at the front of the document.  A table maps the revised principles to the amended FRCP, giving an easy cross reference.  For those wanting a deep dive, the document provides well-documented commentaries for each Principle, revealing the thought that went into the wording of each.

The Sedona Principles (Third Edition) is open for public comment, and can be downloaded here!