This post was not written by ESI Survival Guide.
Source: Original Article
For the second class meeting of my law school courses on E-Discovery and Digital Evidence, I require my students read the fourteen Sedona Conference Principles from the latest edition of “Best Practices, Recommendations & Principles for Addressing Electronic Document Production.” The Sedona principles are the bedrock of that group’s work on ESI and, notwithstanding my misgivings that the Principles have tilted toward blocking discovery more than guiding it, there’s much to commend in each of the three versions of the Principles released over the last twenty years. They enjoy a constitutional durability in the eDiscovery community.
When my students read the Principles, I revisit them and each time, something jumps out at me. This semester, it’s the musty language of Principle 9:
Principle 9: Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.
The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing Electronic Document Production, 19 SEDONA CONF. J. (2018)
Save for the substitution of “electronically stored information” for the former “data or documents,” Principle 9 hasn’t been touched since its first drafts of 20+ years ago. One could argue its longevity owes to an abiding wisdom and clarity. Indeed, the goals behind P9 are laudable and sound. But the language troubles me, particularly the terms, “shadowed” and “fragmented,” which someone must have pulled out of their … I’ll say “hat” … during the Bush administration, and presumably no one said, “Wait, is that really a thing?” In the ensuing decades, did no one question the wording or endeavor to fix it?
My objection is that both are terms of art used artlessly. Consider “shadowed” ESI. Run a search for shadowed ESI or data, and you’ll not hit anything on point but the Principle itself. Examine the comments to Principle 9 and discover there’s no effort to explain or define shadowed ESI. Head over to The Sedona Conference Glossary: eDiscovery and Digital Information Management, and you’ll find nary a mention of “shadowed” anything.
That is not to say that there wasn’t a far-behind-the-scenes service existing in Microsoft Windows XP and Windows Server to facilitate access to locked files during backup that came to be called “Volume Shadow Copy Services” or “VSS,” but it wasn’t being used for forensics when the language of Principle 9 was floated. I was a forensic examiner at the time and can assure you that my colleagues and I didn’t speak of “shadowed” data or documents.
But whether an argument can be made that it was a “thing” or not twenty years ago, it’s never been a term in common use, nor one broadly understood by lawyers and judges. It’s not defined in the Principles or glossaries. You’ll get no useful guidance from Google.
What harm has it done? None I can point to. What good has it done? None. Yet, it might be time to consign “shadowed” to the dustbin of history and find something less vague. It’s not gospel, it’s gobbledygook.
“Fragmented” is a term that’s long been used in reference to data storage, but not as a synonym for “residual” or “artifact.” Fragmented files refer to information stored in non-contiguous clusters on a storage medium. Many of the files we access and know to be readily accessible are fragmented in this fashion, and no one who understands the term in the context of ESI would confuse “fragmented” data or documents with something burdensome to retrieve. But don’t take my word for that, Sedona’s own glossary backs me up. Sedona’s Principle 9 doesn’t use “fragmented” as Sedona defines it.
If the drafters meant “fragments of data,” intending to convey “artifacts recoverable through computer forensics but not readily accessible to or comprehended by users,” then perhaps other words are needed, though I can’t imagine what those words would add that “deleted” or “residual” doesn’t cover.
This is small potatoes. No one need lose a wink of sleep over the sloppy wording, and I’m not the William Safire of e-discovery or digital forensics; but words matter. When you are writing to guide persons without deep knowledge of the subject matter, your words matter very much. If you use a term of art, make sure it’s a correct usage, a genuine one; and be certain you’ve either used it as experts do or define the anomalous usage in context.
When I fail to do that, Dear Reader, I hope you’ll call me on it, too.