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By Dilen Royalty-free stock

Just over three years have passed since the December 2015 amendments to the Federal Rules of Civil Procedure. In that time, courts have grown increasingly comfortable with the amended Rules’ emphasis on proportionality and overhauled spoliation regime. What has not changed, however, is the pivotal role of good-faith, reasonable document preservation efforts in avoiding downstream discovery disputes. In recognition of the continued importance of sound legal hold procedures, the Sedona Conference—an influential e-discovery think tank composed of jurists, lawyers (from both sides of the aisle), academics and other experts in the field—recently published for public comment its Commentary on Legal Holds, Second Edition: The Trigger & The Process. The Commentary sets forth 12 guidelines, each supported by case law and accompanied by illustrations, to help parties meet their duty to preserve “discoverable information,” which is defined as “information that is relevant to the parties’ claims and defenses and proportional to the needs of the case.” The Commentary also provides pragmatic suggestions for establishing preservation procedures, addresses the tension between preservation obligations and data protection laws (most notably the EU’s General Data Protection Regulation), and offers best practices for the eventual release of legal holds. Below we highlight the key provisions of the guidelines, emphasizing how parties can put each to practical use to create an effective and defensible preservation program.

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