Principle Nine

Principle Nine is Not So Fine, Says Craig Ball: eDiscovery Best Practices

While Craig Ball requires his students to read the fourteen Sedona Conference Principles, he says that principle nine is not so fine! Here’s why.

In Craig’s post on his excellent Ball in Your Court blog (Not So Fine Principle Nine, available here), he states: “For the second class meeting of my law school courses on E-Discovery and Digital Evidence, I require my students read the fourteen Sedona Conference Principles from the latest edition of Best Practices, Recommendations & Principles for Addressing Electronic Document Production. The Sedona principles are the bedrock of that group’s work on ESI and, notwithstanding my misgivings that the Principles have tilted toward blocking discovery more than guiding it, there’s much to commend in each of the three versions of the Principles released over the last twenty years. They enjoy a constitutional durability in the eDiscovery community.” {Link added}

As a part of that, Craig revisits them and (as he says) “each time, something jumps out at me.  This semester, it’s the musty language of Principle 9:”

Principle 9: “Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.”

As Craig notes: “the language troubles me, particularly the terms, ‘shadowed’ and ‘fragmented,’ which someone must have pulled out of their … I’ll say “hat” … during the Bush administration, and presumably no one said, “Wait, is that really a thing?”  In the ensuing decades, did no one question the wording or endeavor to fix it?”

Craig dives into those terms in particular, noting that “words matter” and that “[i]f you use a term of art, make sure it’s a correct usage, a genuine one; and be certain you’ve either used it as experts do or define the anomalous usage in context.” Fair point, though I’d like to see what the original drafting team was thinking when they created principle nine. I’m hoping one of them weighs in on Craig’s blog post.

So, what do you think? Are you as “troubled” by some of the language in principle nine as Craig is? Please share any comments you might have or if you’d like to know more about a particular topic.

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