Satisfying a party’s e-discovery obligations is a complex and expensive task. In-house counsel, lawyers and judges often refer to and cite e-discovery-related publications of the Sedona Conference, which provides valuable resources to address difficult e-discovery questions. This article will examine some recent and anticipated developments at the Sedona Conference which could further change the landscape of e-discovery.
The Sedona Conference is a non-partisan law and policy think tank on antitrust law, complex litigation and intellectual property legal issues. It is perhaps best known for the Sedona Principles Addressing Electronic Document Production, Second Edition (June 2007), one of the most influential guidelines of e-discovery best practices. The Sedona Principles consist of 14 “best practices recommendations and principles,” each of which is accompanied by commentary regarding its application. They are intended to address the entire range of e-discovery issues that may arise. Because the Sedona Principles are frequently cited in leading judicial decisions regarding e-discovery and may help resolve unanswered questions, in-house counsel should regularly consult them.
Beyond the Sedona Principles, the Sedona Conference provides valuable resources for judges, including the Cooperation Proclamation, which encourages judges to foster cooperation between parties and advocates proportionality in preservation and production, among other things. Dozens of federal and state judges have signed on to the Cooperation Proclamation and shared their insights. The Sedona Conference may soon add a computer chat forum as an additional resource, which would allow judges to discuss and share issues relating to e-discovery in a password-protected environment. This e-discovery forum would be divided into about 20 issue segments, and would include background educational materials and court decisions relevant to each different segment. Judges could suggest strategies for facilitating cooperative discovery, comment on advice offered and provide sample orders or other helpful documents.
Such a forum could facilitate the increased development of language and guidelines upon which e-discovery issues are decided. Although the forum is not available to general counsel, it is important that they are aware of its existence. In many instances, advocates will be able to cite to Principles regarding proportionality in discovery or the Cooperation Proclamation to bolster their clients’ objections to discovery burdens that appear primarily designed to impose costs.
The Sedona Conference is also poised to extend its influence to international e-discovery issues. Its International Principles on Discovery, Disclosure & Data Protection (December 2011), which address cross-border disputes regarding electronically-stored information (ESI), are increasingly being cited in courts in the U.S. International Principles 2 and 3, for instance, encourage parties to only seek ESI located abroad that is necessary to their claims or defenses; to produce ESI from alternative domestic sources, rather than from custodians abroad that have duplicative ESI; and to conduct discovery in phases.
The International Principles, which seek to minimize conflicts and to make international e-discovery more efficient, are being cited approvingly by commentators, and they can be expected to play an increasing role in cross-border e-discovery disputes. Although the Hague Convention offers some cross-border e-discovery solutions, it is often complicated by procedural “blocking statutes” that do not similarly affect the International Principles. (In Switzerland, for instance, only local courts may compel the production of documents for use in a court proceeding in the U.S.)
We encourage in-house counsel to become familiar with the Sedona Principles and other publications by the Sedona Conference when navigating e-discovery issues—and to make sure their outside counsel also develops such knowledge.