Last week, the Sedona Conference Group on Electronic Document Retention and Production (Working Group 1) held its midyear meeting. The Sedona Conference’s mission is “to drive the reasoned and just advancement of law and policy,” and is comprised of federal and state judges, in-house counsel, discovery managers, plaintiffs’ counsel, defense counsel, and government representatives. With this group’s primary focus on discovery, there were many thoughts, opinions, and recommendations discussed at the meeting, which are condensed into three main takeaways.
First and foremost is the notion we learned in kindergarten: to “play nice in the sandbox.” The conference kicked off with a discussion of cooperation and transparency, focusing on the question of how do members of the e-discovery community encourage more cooperation between the parties while still remaining advocates for our clients. One such notion discussed was the idea of including the corporate client in meet & confers or whether this would result in a more contentious meeting. While we all work to strike this balance, stay tuned to the Sedona Conference as it begins the process of drafting a publication on this very topic of cooperation and transparency.
Second is the need for practical guidance for non-discovery practitioners by the e-discovery community. Whether we are in-house counsel working with our teams and experts on a defensible disposition or we are first year associates drafting our first motion, the need for practical guidance is of utmost importance. It is with answering this “how” question that the important, essential outcome is achieved. The goal of providing our community with practical guidance resonated throughout our discussions.
Lastly, at least for this blog, is the attention to detail required in drafting guidelines for discovery. One item discussed at length with the larger group, and then as small groups formed throughout the conference, is the use of “may” and “should.” “May” implies that there is a choice, and in providing the practical guidance discussed above, necessarily involves the criteria needed to make that choice. Whereas the use of “should” implies a requirement which begs the question as to what happens if an entity does not comply. Even after answering the may versus should conundrum, we still need to adhere to the notion of providing practical guidance in answering how we may (or should) accomplish a principle.
As we continue to play nice in the sandbox, we also continue to look to the Sedona Conference to be a diverse, driving force in providing practical and thoughtful guidance for our discovery community.
