Call for Comment: The Sedona Conference Commentary on Defense of Process

This Commentary represents the culmination of five years of spirited dialogue within WG1 on a number of sensitive topics that go to the heart of what it means to be a competent advocate and officer of the court in an age of increasing technological complexity. The thirteen principles in this Commentary set forth general guidance to help parties and the courts deal with the growing complexity of e-discovery processes. The Commentary seeks to address what should be done to prepare for—or better yet, avoid—challenges to process, and how courts should address those disputes that arise. Importantly, the Commentary makes clear that “defense of process” is not required in every case, and that certain threshold requirements should be met before a party is required to “defend its process” or before “discovery about discovery” should be permitted. It is hoped that this framework, if followed, will invoke scarce judicial resources with less frequency, and only when disputes are ripe for resolution and less formal alternatives have been exhausted.