Public comment is sought on a new Cover Memorandum that has been attached to The Sedona Conference Commentary on Rule 34 and Rule 45 "Possession, Custody, or Control," which was originally published in 2016. The Cover Memorandum reflects the recommendation of a recently formed WG1 Brainstorming Group that was tasked with considering whether an update to the 2016 Commentary would be beneficial. The Brainstorming Group conducted detailed analysis of case law that has emerged since the 2016 publication that address possession, custody, or control, new statutes and data privacy laws that are now on the books, and the impact of newer technologies such as cloud computing and ephemeral messaging on the recommendations set forth. It concluded that the guidance and recommendations provided in the 2016 Commentary are still valid and did not warrant reconsideration. It recommended that the Commentary be reissued with a 2024 publication date, based on the belief that the Commentary remains a valued resource for the bench and the bar, and a new publication date will both reaffirm Sedona's endorsement of the guidance set forth and ensure that it is not considered out-of-date. The WG1 Steering Committee has approved that recommendation, pending Member review and a public comment period. The Commentary with attached Cover Memorandum is available for download from the Publications page on The Sedona Conference website. Please note that only the Cover Memorandum is subject to review -- the remainder of the Commentary is unchanged from 2016. Your feedback and suggestions are critical to achieving consensus-based solutions and producing practical work product. Please submit any comments by email to [email protected] no later than February 15, 2023. Thank you for helping to move the law forward! |
