Guidance and Uniformity in Filing ESI and Records Under Seal is the Latest Commentary for The Sedona Conference: eDiscovery Best Practices

Meant to get to this before the holidays but ran out of time. The Sedona Conference® (TSC) and its Working Group 1 on Electronic Document Retention and Production (WG1) has announced that The Sedona Conference Commentary on the Need for Guidance and Uniformity in Filing ESI and Records Under Seal (“Commentary”) has been published for public comment. And there’s a webinar next week on it too!

The intent of this Commentary (available for download FREE here) is to minimize the burden on litigants and courts created by the lack of uniformity in United States district court procedures for sealing confidential documents and electronically stored information (ESI). The Commentary offers a Proposed Model Rule designed both to bring uniformity to the process of filing under seal and to create a fair and efficient method to deal with the sealing and redacting of ESI, so that the parties can focus on the litigation while conserving the resources of the court. The Proposed Model Rule does not provide any guidelines or guidance for what ESI is properly sealed or redacted; it only provides a procedure for doing so.

The 58-page PDF Commentary on the Need for Guidance and Uniformity in Filing ESI and Records Under Seal includes an Introduction and three additional sections:

  • Proposed Uniform Model Rule for The Sealing and Redacting of Information Filed with a Federal Court, with the FORM NOTICE OF PROPOSED SEALED RECORD on page 10
  • Annotated Proposed Uniform Model Rule for the Sealing and Redacting of Information Filed with a Federal Court, with details to provide guidance and uniformity, including definitions and even a flowchart!
  • Appendix: Standards for Sealing in Federal Courts, with Common Law Right of Access, First Amendment Right of Access, Federal Rule 26(c) (on protective orders) and a detailed overview of Circuit Case Law.

The Commentary on the Need for Guidance and Uniformity in Filing ESI and Records Under Seal is open for public comment through February 5, 2022. Questions and comments may be sent to comments@sedonaconference.org. The drafting team will carefully consider all comments received, and determine what edits are appropriate for the final version.

There is also a webinar on the Commentary on Wednesday, January 12 at 3pm ET. To register for the webinar, click here.

So, what do you think?  Do you need guidance and uniformity when it comes to filing ESI and records under seal?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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