On December 1, 2006, new Federal Rules of Civil Procedure took effect in federal courts governing the discovery of “electronically stored information” (ESI) in civil litigation.

These new electronic discovery rules for ESI were not created in a vacuum. They arrived after years of discussions, analysis, and writing by the legal minds involved in the Sedona Conference. The “Sedona Principles,” as they have come to be known, are a set of 14 tenants that seek to apply the basic principles of discovery to the new medium of ESI.

But according to the authors of The Sedona Principles, the new e-discovery Federal Rules of Civil Procedure “do not answer many of the most vexing questions judges and litigants face.” The authors note that the new e-discovery Federal Rules “do not govern a litigant’s conduct before suit is filed, nor do they provide substantive rules of law in such important areas as the duty of preservation or the waiver of attorney-client privilege.”

The new electronic discovery rules in the Federal Rules of Civil Procedure have other limitations. They do not govern in state court, even though their influence may be significant.

The Sedona Conference Working Group on Electronic Document Production sought to craft “best practices” for attorneys to use in addressing discovery of ESI in litigation and investigations.

The Sedona Conference Working Group on Electronic Document Production also placed great weight on the “rule of reasonableness.” That rule is embodied in Rule 1 of the Federal Rules of Civil Procedure (courts should secure the just, speedy and inexpensive determination of all matters) and is applied through former Rule 26(b)(2) (now renumbered as Rule 26(b)(2)(C) – proportionality test of burden, cost and need) and in many state counterparts. In the words of the Sedona Principles authors, “[t]he rule of reasonableness means that litigants should seek – and the courts should permit – discovery that is reasonable and appropriate to the dispute at hand while not imposing excessive burdens and costs on litigants and the court.”

The small group of twenty-four members that were part of the first Sedona Conference Working Group on Electronic Document Production group has been expanded. By October 2002, the Sedona Conference Working Group on Electronic Document Production had grown to more than 400 members, with participation from the judges, professors, government officials, and all segments of the civil bar (litigation attorneys).

The 14 Sedona Principles embody the consensus views of the Sedona Working Group participants and represent what they believed was “a reasonable and balanced approach to the treatment of electronic data.”

The Sedona Principles, Second Edition, has been updated to take into account the 2006 Amendments to the Federal Rules of Civil Procedure, and also to discusses the numerous important court decisions that are influencing the development of electronic discovery law.