K&F Consulting E-Discovery Expert Greg Fordham says Sedona Conference Best Practices Update ‘Still Weak on Preservation’

ATLANTA  –  Although improved, the second edition of  The Sedona Principles addressing electronic document production and published by The Sedona Conference of Phoenix, Ariz., are still weak on preservation.          

That’s the conclusion reached by computer forensics expert Greg Fordham of K&F Consulting in his latest article, Sedona Conference Releases Best Practices Update: More is Still Needed. In the article Fordham examines closely changes in Principles 8, 12 and 14 along with new Commentaries to Principles 2, 3, 6, 8, 10, 12 and 14.

"While numerous revisions were made in the second edition to bring the Principles more into line with the 2006 Federal Rules for Civil Procedures changes and evolving case law, the revisions reflect a follow-the-leader approach to e-discovery rather than advancing e-discovery best practice," Fordham says.

Fordham says the most significant change occurs with Principle 12, which addresses metadata. 

Originally, Principle 12 limited the preservation and production of metadata to an agreement of the parties.  The revised Principle omits this limitation in recognition of the growing preference for production of documents in native format. 

In Principal 8, Fordham notes that the previous language in the base Principle that limited discoverable information to "active data and information purposely stored in a manner that anticipates future business use and permits efficient searching and retrieval" has been shortened to "active data and information" only.   

The initial language in Principal 8 had the effect of limiting a requesting party’s access to backup tapes, particularly disaster recovery backup tapes even if they had been retained over a long period of time, Fordham said.

"The revisions to Principles 12 and 8 reflect the erosion of the Sedona Conference’s long time posture on digital evidence best practices that many have seen as flawed," Fordham observes.            

Although improved, Fordham says much is still needed for the existing subject areas as well as practices and procedures not yet addressed. 

Fortunately, Fordham says, the Principles’ Preface states, "[T]he accompanying Commentary reflects numerous circumstances and illustrations where the presumptive rule must be adapted to the particular facts."

"So litigators with a better mousetrap in mind are free to use it if they can convince their judge of the Sedona Principles’ significant limitations when compared to their own design," Fordham said.

The article can be downloaded in its entirety at www.knfcon.com/sedona-conference.html.

About K&F Consulting

With offices located in the metro Atlanta area, K&F Consulting services a nationwide clientele. The firm provides a variety of e-discovery, damages quantification, and computer forensics including database forensics and software forensics services. For more information on K&F Consulting visit www.knfcon.com or call 770-642-0311.

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