moleThe Sedona Conference “Best Practices Recommendations & Principles for Addressing Electronic Document Production (2d Edition 2007)” still impresses me as a thoughtful and balanced articulation of how electronic discovery should proceed.  Yet, each time I read them, Principle Six stands out like a witch’s hairy mole on a pretty face.

Sedona Principle 6 is overdue for an overhaul:  It’s out of synch with reality, and always has been.

The current Principle Six states, “Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.”

Sometimes responding parties are best situated.  But, sometimes they are foxes guarding henhouses, and sometimes possess so little competence that their folly serves as fodder for sanctions.

The presumption of superior competence is belied by the reality of widespread confusion and incompetence.  Yes, an organization may better know its own data for it’s in a superior position to know; but, it’s foolish to assume they possess a superior ken of their data with respect to its identification, preservation and transit into and through e-discovery.  That’s a specialty.

Sometimes the requesting party better understands the relevant elements of the responding party’s information technology vis à vis e-discovery than the responding party.  Truth be told, the procedures, methodologies and technologies appropriate for preserving and producing ESI are more similar than they are different. Is one company’s Exchange Server fundamentally different from another’s?  Is your implementation of Salesforce.com radically different in terms of features and capabilities than mine? If Shakespeare wrote for Wired, might Shylock ask,

Hath not a requesting party computers? hath not a requesting party databases, websites, servers, iPads, metadata, texts? fed with the same bytes, hurt with the same malware, subject to the same viruses, healed by the same patch, warmed and cooled by the same Nest thermostat, as a responding party is? If you right click us, do we not render a context menu?  if you ping us, do we not post? if you spam us, do we not filter? and if you wrong us, shall we not move for sanctions? If we are like you in the rest, we will resemble you in that.

If a requesting party has expertise (or expert help) and the producing party has none, why is it reasonable to accord the responding party a presumption of superior knowledge or ability?   Certainly, we should demand competence and defer to it; but, we should not presume it without cause to believe it exists.

The case of Brown v. Tellermate Holdings Ltd., Case No. 2:11-cv-1122 (S.D. Ohio July 1, 2014) is a telling example of why Sedona Six is wrong.  The Browns were former employees of Tellermate and daily used Salesforce.com.  When they contended that Salesforce.com was capable of yielding up the information they sought in discovery, they knew what they were talking about.  Tellermate and its counsel were clueless with respect to the procedures, methodologies, and technologies appropriate for preserving and producing their own data from Salesforce.com.  So, it’s absurd to suggest that, simply because they were responding parties, Tellermate or its counsel were better situated—let alone best situated–to evaluate procedures, methodologies and technologies when their every action demonstrated dishonesty or incompetence.

Sedona Six is a fiction that needs to be shown the door because it works against the transparency required in e-discovery and serves to defer scrutiny at the cost of substantial waste and delay.

Here’s the rub: Even the Comments to Principle Six offer no support for the presumption of superior competence.  There are no cases cited for the proposition, nor any commentary that argues its merits.  The Comments deal with cases where requesting parties sought direct, unfettered access to databases, mail servers and hard drives–archetypal fishing expeditions with the potential to compromise confidential and privileged information.  If the Principle said, “Just because requesting parties think they know what they’re looking for better than you do is no reason to let them rummage around in your stuff,” I’d have no problem with Principle Six.

Absent exceptional circumstances, there are compelling reasons to let producing parties be producing parties.  But, there is no cause for a presumption of superior competence, particularly when that presumption is wielded to frustrate communication, cooperation and essential transparency of process.

We should be guided by the Russian maxim, “Doverai non proverai” (Trust, but verify).  It’s expensive to botch an e-discovery effort, and it hurts everybody.  Do-overs aren’t always possible, and evidence uncollected may be evidence lost forever.  We should trust in our opponent’s procedures, methodologies and technologies, but not without verification that our trust is warranted.

If I’d been forced to frame the Principle, it might have read, “Responding parties shall endeavor to be best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.”

But I don’t think we need my superfluous rendition any more than we need the current one promulgating a patently false premise.  “Father Knows Best” is a rerun, not a reality.

Someday, it will be sensible to presume producing parties are capable because competence will be the norm; but today, we must be permitted to question, challenge and verify that responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.  We must do it without the need to overcome a presumption that flies in the face of common experience.

It’s time to deep six Sedona Six.

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