Sedona Conference Commentary on Discovery of Collaboration Platforms – What is a Document?

The Sedona Conference® has posted its “Commentary on Discovery of Collaboration Platforms Data, Public Comment Version” (Apr. 2025).  Public comments may be submitted through May 16, 2025.

My comment is that the Commentary is excellent and well worth reading.

I am not going to try to summarize the comprehensive, 32-page document.  Instead, I will discuss one issue, “document unitization.”

The Commentary defines “document unitization,” as “dividing continuous communication strings such as chat or instant messages into more manageable units, such as a 24-hour period….”

Sedona suggests unitization methodologies, such as “before and after” agreements and use of date ranges, as well as their advantages and disadvantages.

As to date range unitization:

For chat and instant-message data, consider whether the collection should be limited to certain date ranges. Unitizing (i.e., breaking up) continuous message strings into smaller pieces is becoming a common practice. Options include breaking up strings into certain time periods (e.g., 24 hours) or into a certain number of messages. If the relevant participants are all in the same time zone, it may be best to process in that local time zone and unitize at, for example, midnight. If the participants are in different time zones, then processing by UTC zone and unitizing either by 24-hour periods or by breaks in discussion may be preferred. The potential downside of unitization by time period or number of messages is that it can artificially break up continuing conversations into separate documents, requiring the parties to manually reassociate them for use in the litigation. [emphasis added].

As to “before and after” unitization agreements:

One method to organize responsive messages is to produce a certain number of messages before and after a responsive chat message. Another method is to identify and organize communications from a particular time range or date range. These are both forms of “unitization” in production. The potential downsides to these approaches include that there may be messages outside the selected message range that would also provide helpful context, and those messages would not be produced as a single conversation if the parties are following such a protocol. [emphasis added].

After noting the advantages and disadvantages of unitization, Sedona discusses the alternative:

Not breaking up the message string into different units, however, would likely result in both irrelevant and relevant messages being produced together. The production of such irrelevant messages may increase the risk that personal and sensitive information is produced. Communication within chat and instant-messaging applications may also jump from one subject to another in quick succession, and then back to earlier subjects. Breaking up the conversation into different units may therefore require the parties to reassociate the related messages manually….

The Commentary summarizes the current decisional authority as follows:

Some courts’ decisions reflect that information contained in continuous message streams may need context, and therefore even messages that by themselves may be considered irrelevant may nevertheless be discoverable because they provide needed context to other relevant communications. Other courts, however, have held that the producing party can unilaterally withhold portions of a text message chain that are not relevant to the case.

The unitization or context issue is not unique to collaboration platforms.

I have written a series of blogs on the topic of “what is a document?” “Modern Attachments” or “Pointers”- What is a Document? (Part IV) (Aug. 12, 2022).

In those blogs,[1] I pointed to parallel issues that may be presented by, for example, text bubbles, spreadsheet cells, Excel workbooks with multiple worksheets, and PDF Portfolios.  In each instance, one may reasonably ask “what is the document?”

Trial, or at least trial preparation, is the primary endgame of discovery:

The fundamental objective of discovery is to advance the sound and expeditious administration of justice by eliminating, as far as possible, the necessity of any party to litigation going to trial in a confused or muddled state of mind, concerning the facts that gave rise to the litigation.

Rodriguez v. Clarke, 400 Md. 39, 57, 926 A.2d 736, 747 (2007)(cleaned up; emphasis added).[2]

While Fed.R.Civ.P. 26(b)(1) states that “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable,” discoverable material that does not meet evidentiary standards may be of little or limited value.

In the words of the Hon. Paul W. Grimm (in a different context), “considering the significant costs associated with discovery of ESI, it makes little sense to go to all the bother and expense to get electronic information only to have it excluded from evidence or rejected from consideration during summary judgment because the proponent cannot lay a sufficient foundation to get it admitted.”  Lorraine v. Markel Amer. Ins. Co., 241 F.R.D. 534, 538 (D. Md. 2007).  Judge Grimm wrote that “[w]henever ESI is offered as evidence,… evidence rules must be considered….” [emphasis added].

Because discovery is not an end in itself, I have discussed, in detail, evidentiary issues that may arise when a “document” is truncated during the unitization and discovery process.  What is a “Document?” (Aug. 17, 2021).  And, of course, the need for “context” was addressed in decisions such as Sandoz v. Un. Therapeutics Corp., 2021 WL 2453142 (D.N.J. Jun. 16, 2021)(text bubbles).

Since the earliest days of e-discovery, parties have been advised to discuss the form or forms of production.  The Sedona Commentary emphasizes this – – and much more – – in the context of collaboration platforms.

In my opinion, one factor that should be considered in these discussions is how the produced communications can be used in depositions, motions, and at trial.  Fed.R.Evid. 106 states:

If a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other part–or any other statement–that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection.

The Advisory Committee Note provides an example: “[A]ssume the defendant in a murder case admits that he owned the murder weapon, but also simultaneously states that he sold it months before the murder. In this circumstance, admitting only the statement of ownership creates a misimpression….”  A similar issue may be presented in complex electronic communications.  For a more detailed scenario of the evidentiary issue, please see What is a “Document?”

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[1] A single file may contain multiple documents.  What is a Document? (Part III) (Apr. 4, 2022)(Excel workbooks and Adobe Portfolios); What is a Document? (Part II) (Aug. 28, 2021)(user created data such as Excel formulas).

[2] “Civil discovery is a device to allow parties to obtain information for the purpose of preparing and trying a lawsuit.”  Gillard v. Boulder Valley Sch. Dist. Re.-2, 196 F.R.D. 382, 387 (D. Colo. 2000); Seattle Times Co v. Rhinehart, 467 U.S. 20, 34 (1984) (“Liberal discovery is provided for the sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes”); Hickman v. Taylor, 329 U.S. 495, 507 (1947)(“Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.”).