North Carolina Business Litigation Report

Electronically Stored Information: New Sedona Principles On Preservation Of ESI

The small Arizona town of Sedona is one of the centers of the e-discovery universe, and the Sedona Conference's Best Practices for dealing with electronic discovery issues have been favorably referenced by many Courts, including the North Carolina Business Court (see here and here).

Now, the Conference has put out a Commentary on Preservation, Management and Identification of Sources of Information that are not Reasonably Accessible.  Why should you care about that?

The answer is that the term "reasonably accessible" is contained in Rule 34 of the Federal Rules of Civil Procedure, governing document production, which says that "a party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost."  (North Carolina Rule 34, last amended twenty-one years ago with a quill pen, contains no such language).

The new Commentary contains detailed guidelines for determining how to make the determination of accessibility, and when electronic information should be preserved.  The Guidelines themselves are below, from the Electronic Discovery Law blog (which is a great resource for court decisions on e-discovery matters) but the Commentary itself contains many useful examples and case citations and is worth reading.   

Guideline 1. Where litigation is anticipated but no plaintiff has emerged or other considerations make it impossible to initiate a dialogue, the producing party should make preservation decisions by a process conforming to that set forth in the Decision Tree in Figure 1.

Guideline 2. As soon as feasible, preservation issues should be openly and cooperatively discussed in sufficient detail so the parties can reach mutually satisfactory accommodation and also evaluate the need, if any, to seek court intervention or assistance.

Guideline 3. In conjunction with the initial discussions or where appropriate in the response to discovery requests, parties should clearly identify the inaccessible sources reasonably related to the discovery or claims which are not being searched or preserved.

Guideline 4. A party should exercise caution when it decides for business reasons to move potentially discoverable information subject to a preservation duty from accessible to less accessible data stores.

Guideline 5. It is acceptable practice, in the absence of an applicable preservation duty, for entities to manage their information in a way that minimizes accumulations of inaccessible data, provided that adequate provisions are made to accommodate preservation imperatives.

Guideline 6. An entity should encourage appropriate cooperation among legal and other functions and business units within the organization to help ensure that preservation obligations are met and that resources are effectively utilized.


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Lee Applebaum - October 25, 2008 7:27 PM

There is a lot to learn in grasping e-discovery, and as lawyers we need to do the legwork to educate ourselves to expected standards; but as Judge Tennille says, we ultimately need to apply our common sense to reach the shore safely. Philadelphia Magistrate Judge Jacob Hart put it similarly when describing how to deal with electronic discovery: “Common sense grafted onto a huge amount of stuff.” Common Sense Remains the Basic Guide in Electronic Discovery (,

The mark of both a good judge and a good lawyer is good judgment, but we’re never guaranteed to find that in ourselves, our brothers and sisters at the Bar or even on the Bench. I clerked for a wonderful Delaware judge, Bernard Balick, who told me the key thing for a judge was having and using “sechel” (the Yiddish word for good judgment or the kind of common sense that might be called wisdom). You in North Carolina are truly fortunate to have a judge with genuine “sechel” like Judge Tennille.

Lee Applebaum, Co-Chair, ABA Subcommittee on Business Courts

Mack Sperling
Brooks Pierce, LLP
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