This past week, I had the privilege of participating in The Sedona Conference Working Group 6 (WG6) Annual Meeting in New York as a dialogue leader. For those that have not participated in such a conference, imagine a group of incredibly dedicated ediscovery professionals from around the globe gathering to “move the law forward” in a reasoned and truly collaborative way. This year’s meeting covered a wide gamut of cross-border discovery and privacy issues. I continue to be in awe of the dedication and commitment of this group.
As a dialogue leader for a paper we are drafting on international legal hold best practices, we were seeking review on how to respond to legal obligations to preserve data when required for litigation or regulatory action, while also recognizing fundamental rights to privacy. This effort builds upon our work on the recently published Second Edition of the Sedona Conference Commentary on Legal Holds, where a new guideline was added to recognize the importance of incorporating international privacy obligations into legal hold practices:
Guideline 12: An organization should be mindful of local data protection laws and regulations when initiating a legal hold and planning a legal hold policy outside of the United States.
The WG6 drafting team is working on a new set of guidelines, which we reviewed at the annual meeting this week. We had a robust discussion on how preservation obligations differ across global jurisdictions. The team discussed how companies should approach incorporating the fundamental right of privacy when responding to a preservation obligation, along with differences in triggering the duty and determining the scope of preservation. We also tackled how legal hold notifications should be conveyed, and the importance of continual reevaluation of preservation duties. Finally, we discussed the importance of establishing a clear process for releasing holds. During this Working Group 6 meeting, we gathered invaluable input which will be incorporated in our next draft of the paper.
Multinational corporations and those impacted by evolving privacy expectations and regulatory oversight will benefit from such shared insights on best practice. And personally, the opportunity to interact with colleagues globally was a phenomenal follow-on to an incredible LegalWeek 2020 for Hanzo.
