September 3, 2020
By J. Kimon Yiasemides
This article was originally published in the Spring 2020 edition of “Under Construction” by the American Bar Association’s Forum on Construction Law.
In the early 2000s, electronic discovery for litigation was more akin to the wild west of the 19th century, requiring lawyers to wrangle over every issue with little law to guide the arguments. The “Marshall” finally arrived on the scene in 2004 as the Sedona Conference’s working group on electronic document retention and production helped create best practices to follow. The guidance, referred to as the Sedona Principles, is now in its third edition. This article explores those principles that are of significant interest to expert witnesses within its third edition.
Expansive use of electronic discovery in the early 2000s was being used by some lawyers to bluntly overwhelm and defeat their opposition while the rules of what would be permitted by the courts were just becoming understood. At that time, the Sedona Conference began to reign-in these issues and provide guidance to legal practitioners in the United States. This industry group was concerned about, “whether rules and concepts developed largely for paper discovery would be adequate to address issues of electronic discovery, and whether guidance on the issues could be expected to emerge quickly from individual court decisions.” As a developing area of the law, there was little codified law that would properly address the variety of expansive electronic discovery situations lawyers were facing. The common law being developed through rulings on cases also provided little consistent guidance. The group developed “… a set of core principles and best practice recommendations for addressing the production of electronic information in litigation…” using industry experts on the subject and public comment periods. These principles were developed into its 2004 publication entitled “Best Practices, Recommendations & Principles for Addressing Electronic Document Production.” This publication would become known as The Sedona Principles.
The Sedona Principles are based on legal precedent from federal and prevailing state cases and has since been cited by various courts and boards across the United States. Armed with this, practitioners using The Sedona Principles now have guidance on the best practices on how to proceed in discovery, and how to argue points in courts that had not addressed electronic discovery issues before.
As the years of disputes regarding electronic discovery unfolded, The Sedona Principles progressed to address the technological advances in electronic discovery. Following the first draft, the Federal Rules of Civil Procedure were altered in December 2006, and for the first time specifically addressed discovery of electronic information. The Sedona Principles then developed its second edition in June 2007, largely in response to the new Federal Rules.
Following several years of development, its latest edition, the third edition, was created in late 2017 and published in 2018 to address developments in the law and technology since the second edition. The Sedona Principles cite to, “… an even greater explosion in the volume and diversity of forms of electronically stored information, the constant evolution of technology applied to eDiscovery, and by further amendments to the Federal Rules of Civil Procedure that went into effect in December 2015”, as well as a refined analysis after ten years of experience, as the causes for its latest publication.
Sedona Principles Important to Experts
Several of The Sedona Principles interact with the work expert witnesses need to undertake. Those Principles that most directly relate to an expert’s work are described herein, with a focus on ones that have changes in the third edition. In particular, I will address Principles 3, 5, 6, and 12 and describe their importance to the work of an expert witness and how the role of the expert intersects with these principles.
As soon as practicable, parties should confer and seek to reach agreement regarding the preservation and production of electronically stored information.
Principle 3 is also reflected in the Federal Rules of Civil Procedure (FRCP), Rule 26 and 34, and is important to expert witnesses for several reasons. First, if the parties’ lawyers have already met and conferred as to how and what to preserve prior to the expert’s engagement, the expert might miss a good opportunity to assist in obtaining relevant and important information. Hence, one of the first questions an expert should ask its client is, “Have you already met and conferred on electronic discovery?”.
Under Principle 3 there are several comments found in The Sedona Principles that expand upon the more broadly stated Principle above. While Principle 3 is shortened in the third edition, the commentary below it incorporates the December 2015 changes to the FRCP as well as that of evolving technologies. Comment 3.c. on form of production, states, “At the outset, requesting parties should have sufficient technical knowledge of production options so that they can make an educated and reasonable request”. Principle 4 further underscores the points above stating; “Discovery requests for electronically stored information should be as specific as possible”.
An example of how this can be an issue is if counsel gets resistance from the responding party on producing emails in native format as opposed to PDF, or TIFF file formats. TIFF files are traditionally the preferred format for loading documents into most discovery software. But without a specialized discovery management software, TIFF files can be difficult to read and organize, as opposed to simply opening emails and attachments in common Microsoft products like Outlook. Depending on the case, and whether counsel plans on using such discovery software, one or the other form may be much more desirable. The responding party does not necessarily have to provide native files and may convince the opposing counsel they are not needed. Counsel can help ensure the right approach is taken by involving a technical expert to ensure the data can be accessed easily, efficiently, and completely.
The FRCP 2006 Committee Note to FRCP Rule 34 does indicate that, in the absence of specific agreement, there should not be any degradation of the electronically stored information (ESI), nor should the production form make the ESI more difficult to use efficiently from what was originally maintained. But without an expert’s involvement, it may be difficult to know if a proper production was agreed to, or performed. Experts often have deep experience with how electronic documents are normally organized and kept, and in what electronic format they are typically produced.
The Sedona Principles directly recognizes the importance of discussing the expert witness’s work early in discovery but does so in the context of what to do with an expert’s work product. In its Comment 3.f. it states, “Preservation of facts and data considered by expert witnesses is a topic appropriate for discussion at an early meet and confer session.” It describes under Comment 3.f. how the FRCP changed in 2010 with respect to rules governing experts. Amendment was made to FRCP 26(a)(2)(4) providing work product protection to draft reports of experts so that they can interact with counsel without fear of exposing drafts in discovery, however, the expert is still to provide under FRCP 26(a)(2) all “facts or data considered by the witness in forming” its opinion. To avoid dispute, Comment 3.f. recommends to discuss and agree early in the process as to what will be disclosed in accordance with Rule 26(a)(2)(B). Without such agreements in place, Comment 3.f. cautions that the practitioner may “… risk later accusations of evidence spoliation or failure to produce.” Several states have not fully, or even partially, adopted the 2010 change in the Federal rules, and as such, the expert should be wary of the rules appropriate for the venue. As such, this is another discussion point between parties that the expert should be either consulted with, or at least informed about.
The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that is expected to be relevant to claims or defenses in reasonably anticipated or pending litigation. However, it is unreasonable to expect parties to take every conceivable step or disproportionate steps to preserve each instance of relevant electronically stored information.
In the third edition, Principle 5 emphasizes that preservation should focus on information relevant to claims and defenses as reflected in the 2015 FRCP amendment to Rule 26(b)(1). Determining precisely what may be relevant ESI early in the discovery process of a large case can be difficult without the help of an expert. Examples of where this would be important include; if computers of certain users have software (and associated files) that the main project sever does not, or if folders of certain employees houses key data.
Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
Without an on-site inspection, the expert should be involved to help annotate what outputs are expected to be provided from computer systems which may be proprietary or are unable to be provided in full. For example, an expert opining on monetary damages sought may need to verify how accounting records were maintained and/or how they relate. In this instance, an expert could request several different forms of outputs from the responding party’s computer accounting system in order to gain all the data required to form the expert’s opinion. The expert should be involved with these discovery requests so that the opportunity is not lost, or at least not made more difficult to obtain later in discovery. The above principle doesn’t raise many concerns for an expert but Comment 6.d. under Principle 6 puts forth a precept that does affect an expert’s investigations. It states; “Rule 34 inspections of electronic information systems are disfavored” meaning that the inspection of an adverse party’s computer systems is not likely to be granted. While The Sedona Principles Comments discuss the sound reasoning behind this rule, and describes how state and federal courts have disfavored on-site inspections of responding party’s computer systems, it does leave open the possibility for ESI productions that provide less than what the expert needs.
One legal treatise even suggests taking a Rule 30(b)(6) deposition of a corporate representative prior to legal counsel crafting its discovery requests under Rule 34 so that counsel can provide better specificity in its requests. An expert can be helpful in providing the right questions to raise in these types of depositions.
Comment 6.e. describes the “Use and role of discovery counsel, consultants, and vendors.” This comment is a cautionary one to ensure legal counsel understands that the, “…Ultimate responsibility for ensuring the preservation, collection, processing, review, and production of ESI rests with the responding party and its counsel, not with any non-party consultant or vendor.” However, this caution is aimed at counsel who are solely relying on vendors to create searches and data recovery plans without engaging in the process themselves, not for those using vendors and consultants to appropriately augment such work efforts.
The production of electronically stored information should be made in the form or forms in which it is ordinarily maintained or that is reasonably usable given the nature of the electronically stored information and the proportional needs of the case.
Principle 12 was revised in the third edition to state the ESI should be provided in forms ordinarily maintained OR that which is reasonably usable (which is reflective of the 2015 FRCP amendments). This change somewhat helps deflect requests for non-relevant data by providing the respondent with a defense that the documents which are ordinarily maintained is in such a fashion that makes it difficult to transmit, but a reasonably usable format can be easily provided. But, in reviewing the commentary for Principle 12, some potential concerns of interest to experts are raised. There are three comments under this principle that seem to conflict but are important to understand. The first two seem to help those seeking native files of ESI (files like those that may be important to expert witnesses):
Comment 12.a. “Special characteristics of ESI (metadata and non-apparent/undisplayed data) may be pertinent to the form in which ESI should be preserved and produced.”
Comment 12. b. “… Absent agreement, ESI must be produced as ordinarily maintained or in a form or forms reasonably usable to the requesting party.”
While further commentary appears to give leeway to not require native format of data:
The commentary under Comment 12.b. also states, “Parties should not demand forms of production, including native files and metadata fields, for which they have no practical use or that do not materially aid in the discovery process…”
Comment 12.b.i.: “To be ‘reasonably usable,’ the form of ESI need not necessarily be its native format or the form in which it is ‘ordinarily maintained’.”
While the first two appear to give support for providing native ESI, the third seems to not. That is because the commentary for Comment 12.b. warns that without a reason of materially aiding the discovery process, the responding party can object – clearly, there is no guaranteed receipt of native ESI within these principles.
Comment 12.b.i. also seems to contradict but is there to allow parties to decide together if they would like to provide documents in a different form that may be more usable to the parties. The third edition removed the phrase “the same ability,” to access and search ESI, as parties might be using different discovery software. Requiring “the same ability” could hamstring what the parties want from the process. Comment 12.b.i. also gives the responding party leeway if it objects to providing native files without first receiving a showing of how the native files might materially aid the discovery process.
Often there are items that are important to preserve in a specific electronic format that legal counsel might not appreciate. For example, a PDF type of file provides much less information than an XLS or an XER type of file (Primavera schedule files), although all three are electronic files, and all three might facially look like they convey the same information to a non-expert. Also, there are ways in which documents are filed that are important and contribute to the expert’s understanding of the documents (such as folder naming, organization of folders, and the like).
Again, in order for counsel to make a compelling request that the data is needed in a particular form such as its native electronic format, counsel may need to look to its experts to help provide technical assistance on why such native files are needed. For example, perhaps there are formulas in the native file, or built-in relationships to the data not shown in printouts from software, that can only be viewed with the native files. The timing of the saved dates of files, or the ability to review attachments to emails may all be very relevant.
Further, there is case law on counsel being denied access to data such as metadata fields or other ESI due to its failure to provide persuasive reasons to the court. One example of such a case was in Ortega v Management and Training Corporation, (US District Court for District of New Mexico, January 20, 2017, case No. 2:16-cv-0665) wherein the court determined that there was no automatic right to electronic documents when hard copies were already provided without a compelling reason to have them. The wary practitioner would be wise to obtain agreement in advance with opposition as to what files are needed in native or electronic format for its expert, prior to having to build a winning case just to convince the court it should force the other party to produce such documents.
The Sedona Principles provide many best practices that relate to the work of expert witnesses, who should be mindful of its principles in performing their work. Expert witnesses should be aware of the status of the discovery efforts and offer information to counsel as to what ESI is of importance to their analysis and formation of opinions as soon as they are engaged. Expert witnesses should seek out answers as to what portions of their work product is expected to become discoverable as the answer may change with the venue. Expert witnesses should also be prepared to provide persuasive argument as to what ESI is relevant and how it is needed in specific formats to obtain the best data to conduct the expert’s analysis. Finally, if the expert witness is not asked about such matters from counsel, the expert should engage counsel in such discussions to ensure the items become a part of the discovery process.
ABOUT THE AUTHOR
Kimon Yiasemides has more than 20 years of experience working on domestic and international construction projects in both the public and private sector. His expertise includes construction management, CPM scheduling, and dispute resolution services. Kimon assists clients with development or rebuttal of construction claims, forensic schedule analysis, eDiscovery assistance and analysis, and dispute resolution either as a consulting expert in settlement conferences or as a named testifying expert in arbitration or court. Kimon received a Bachelor of Science with honors from the University of Florida School of Building Construction and obtained his Juris Doctor from the University of Maryland School of Law.
 The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 SEDONA CONF. J. 1, pg. 11 (2018).
 Id. at 11.
 Id. at 11-12.
 Id. at 12.
 Id. at 8-9.
 In particular, the third-party expert witnesses that are expected to provide testimony on the chain of causation on a project (such as a scheduling expert or productivity expert for construction projects), or testimony with respect to the analysis of the cost of claims (damages experts), or professional standard of care experts would be those most interested in the issues discussed in this article. This is less true of testing experts (e.g., materials testing), ballistics experts, and/or those hired to create material or product failure simulations.
 Id. at 79.
 Id. at 87.
 Id. at 80.
 Id. at 84.
 Id. at 84.
 Id. at 93.
 Id. at 118.
 Id. at 127.
 Paul Grimm, Charles Fax, Paul Sandler, Discovery Problems and Their Solutions, 54 (American Bar Association 2005).
 The Sedona Principles, Third Edition, 19 SEDONA CONF. J. 1, at 130 (2018).
 Id. at 130.
 Id. at 169.
 Id. at 169.
 Id. at 172.
 Id. at 172.
 Id. at 174.