The Sedona Conference Working Group 1 Midyear Meeting 2019

2018 generated more than 400 reported state and federal court decisions on eDiscovery, addressing such important topics as preservation, proportionality, privilege, privacy, form of production, cost-sharing and cost-shifting, cross-border discovery, and sanctions. 2019 is shaping up to be as busy a year, or more. This session will analyze the top dozen court decisions from the past year with which all eDiscovery practitioners must be familiar.

Practitioners and jurists alike have expressed a longing for more pragmatic, day-to-day eDiscovery advice for the majority of cases that are modest in scope and often litigated in state courts. The eDiscovery for Small Cases drafting team has answered the call! This session is dedicated to adapting many of the best practices memorialized in various WG1 publications to more routine and smaller-scale matters. This session will also address various low or no cost tools, tips, and tricks that practitioners can utilize to achieve best practices while staying true to principles of proportionality.

Artificial intelligence is not all about document review. The panel will explain the evolving concept of artificial intelligence and discuss its benefits and risks in the legal profession. Moreover, the panel will discuss how some prominent law firms and companies are using artificial intelligence tools in their litigation practices today. Lastly, the panel will explore the ethical challenges related to the use of artificial intelligence by litigators, with particular attention to the relevant provisions of the Model Rules of Professional Conduct: Rule 1.1, Comment 8 (“Maintaining Competence”) and Rule 5.3 (“Responsibilities Regarding Nonlawyer Assistance”).

The 2008 Sedona Conference Commentary on ESI Evidence & Admissibility has been updated in a new member draft with discussions about new approaches to admissibility and new tools for handling today’s forms of electronically stored information (ESI), like Blockchain, Internet of Things, Ephemeral or Self-Destructing Data, and group collaboration tools, and their impact on authentication and admissibility. This panel will also review instructive state court cases addressing new data sources as well as additional practical tips for encryption, forensics, authentication, and admissibility. Member feedback on the updated member comment version of the Commentary will be actively solicited.

The transmittal of data across international borders is now a routine part of eDiscovery and an absolutely essential consideration in any Information Governance program, even for organizations that don’t consider themselves to be “global.” The privacy and data security implications for any type of cross-border data transfer, whether in response to a legal obligation or a routine business need, are enormous and complex. In the past several months, the efficacy of established mechanisms for data transfer into the U.S. – court orders, letters rogatory, Model Contract Clauses, Binding Corporate Rules, Privacy Shield, and others – has come under question by regulators, courts, and campaigners around the world. On the flip side, overseas parties seeking discovery in the U.S. under 28 U.S.C. §1782 are finding out that it isn’t as easy as they may have thought. This session will summarize the current state of play, including significant developments with the passage of the CLOUD Act in the U.S. and the continuing Schrems litigation in the EU.

Despite Fed. R. Civ. P. 34(b)’s “reasonable particularity” language, and the other rules and caselaw that underscore the mandate for specificity, vague and overbroad discovery requests have continued, clogging the courts and increasing litigation costs. When vague discovery requests are challenged, the requesting party often is simply provided a “do-over” opportunity to refine the original requests or propound new requests, leaving little incentive to follow the mandates of Rule 34. Join this new brainstorming group as we dialogue about: (i) how parties should approach drafting and propounding requests pursuant to Rules 34(a) and (b); (ii) how discovery can benefit from requests for relevant and proportional information that describe with reasonable particularity the information being sought; (iii) what “reasonable particularity” means and how to employ it; and (iv) how courts enforce the scope and “reasonable particularity” requirements of Rules 34(a) and (b), and the proper remedies for failing to serve specific discovery requests.

This panel of judges will examine the impact of case law, Sedona Conference WG1 Commentaries, and other significant developments in eDiscovery in federal and state jurisdictions. The panel will provide insight from a wide variety of perspectives from the bench, representing federal and state court systems in different regions.
Topics will include:

• Are litigants struggling with admissibility issues for new technologies and social media?
• How proactive are lawyers and judges on ESI issues in judicial conferences?
• What do judges think about privilege logs and their usefulness?
• How can lawyers facilitate a court's in camera review of documents withheld for privilege?
• Have lawyers figured out the evidentiary requirements for a burden argument?
• Do you see more frequent proportionality arguments from litigants?
• Discovery requests, objections, and responses: are litigants improving after the recent FRCP Amendments?
• Are Rule 45 Subpoenas issued before making a request of the parties?
• Has the definition of relevancy changed?
• Does document review require some sort of quasi scientific method?
• Does requiring a conference before a motion make a difference?
• What elements of Rule 37(e), if any, are “facts” that should go to the jury for determination of the appropriate sanction, or are the Rule 37(e) factors entirely a matter for the judge?

eDiscovery and Information Governance are legal sub-specialties that uniquely benefit from diversity. While we live in an integrated digital world, different populations use information and communications technologies in different ways, with some groups preferring particular media or applications, others using particular language or symbols, and still others inventing new technologies altogether. Effective eDiscovery requires teams that represent diversity of age, gender, race, language, geographic and social background, and other attributes⸺the sort of mix that is often lacking in today’s law firm, legal department, and litigation support environments. The Sedona Conference Working Group Series has a special mission to foster the diversity that leads to eDiscovery and Information Governance excellence. Join us to dialogue over some of the ways in which we can carry out that mission, including: use of mentorship/leadership strategies; development of intercultural communication skills for a global workforce; and addressing systemic issues such as unconscious bias and implicit privilege.

Traditional privilege review and logging has become increasingly complex and difficult in cases involving high volumes of electronically stored information. This session will analyze those challenges and emerging approaches for addressing the issues including through the use of categorical privilege logs, metadata logs, and technology-assisted review. This session will also address the roles of proportionality and cooperation, the need for non-waiver orders under Federal Rule of Evidence 502(d), and how courts can better recognize and address the challenges of protecting privilege in modern discovery.