Sedona Watch
The Sedona Conference® Goes Global
Cecil A. Lynn, III Esq., Director, Industry Relations
When people think of Sedona, they usually visualize the breathtaking red sandstone rock formations of a small
Northern Arizona town. However, in the legal community, The Sedona Conference® (TSC) means something different, although its name is somewhat of a misnomer as it is not a conference. Rather, TSC is a Sedona-based nonprofit research and educational institution dedicated to the study of law and policy. TSC achieves this goal through the creation of Working Groups or “think tanks” that seek to develop sets of uniform guidelines, principles, and best practices on cutting edge and novel issues of law in the areas of complex litigation, antitrust and intellectual property rights.
Through its Working Group series, numerous publications and educational programming, TSC has been tremendously successful in the United States
in continually moving the law forward. Currently, TSC has 10 Working Groups, three of which focus exclusively on electronic discovery. The first, Working Group 1 (WG1), grew out of TSC’s annual complex litigation conference in October 2002 and was tasked with the development of principles and best practices for domestic electronic document retention and production.
“The success of the Sedona Conference has been overwhelming. It has been extremely gratifying for us to see the bench and bar rise to the challenge of true dialogue in a manner that allows the creation of content that is truly nonpartisan and of immediate benefit. The number of courts that have cited our work and the number of practitioners that have relied upon us is a testament to the value we have been able to provide to the legal profession,” said Richard Braman, executive director of the Sedona Conference.
In addition to its impact on
law, TSC has successfully expanded its Working Group Series to engage and foster dialogue with other countries. The Sedona Principles have been very influential in the development of disclosure practices and has been cited in publications throughout the world. The success of the WG1 has led to the creation of two international Working Groups: WG6 and WG7.
Working Group 6: International Electronic Information Management, Discovery and Disclosure
Working Group 6 members come from across the globe, united by the common goal of addressing issues related to the preservation and discovery (often called “disclosure” in
Europe) of electronic information. Several issues raised in this Working Group affect the legal community as multinational corporations wrestle with global information and records management policies and practices. WG6 is currently developing best practices related to the cross-border transfer of electronic information and the avoidance/resolution of conflicts that may arise.
The project has international significance as the laws of the United States
related to discovery generally are more expansive than those of other countries. For example, while U.S. discovery is rather permissive, it is extremely limited in Japan and China. In other countries, disclosure of certain information may be prohibited all together. For example, the European Union’s Data Protection Act (Directive 95/46/EC) requires its member states to protect the fundamental rights and freedoms of its citizens, including their right to privacy with respect to the processing of their personal data. Of course, the concept of electronic discovery itself is also still somewhat “foreign” in many jurisdictions around the world.
Working Group 6 strives to understand and interpret the laws of the global community to develop strategies and objective factors that provide practical solutions for the disclosure of electronic information across international borders. To assist in its efforts, WG6 is drafting a survey that tracks the laws governing the disclosure of electronic information in several foreign jurisdictions, including Australia, Bermuda, Canada, China, England, Germany, Ireland, Japan, Spain, Sweden and Switzerland. TSC plans to change its website in the near future to allow members to communicate with one another. Members will also be able to update the survey with the latest developments in a particular country.
On December 6 - 7, 2007, members will meet in Hamilton,
Bermuda for WG6’s annual meeting. In
Bermuda, members will vet and prepare final versions of their publications which include “International Survey on Ediscovery and Data Protection” and “Resolving Cross-Border Conflicts.” The annual meeting will also give members a chance to map out the future direction of the Working Group. “The nice thing about the WG6 annual meeting is that it gives members a chance to share their experiences from throughout the world,” said Braman.
Working Group 7: Sedona Canada
Working Group 7 is charged with the development of best practices and policies to achieve uniform rules regarding the preservation and production of electronic information in Canada. The task is particularly difficult given the majority of the Canadian provinces follow common law principles with the exception of
Quebec, which is a civil law jurisdiction. As a result, civil rules, procedures, and substantive laws are not necessarily uniform across . Nonetheless, WG7 strives for uniform interpretation of the laws related to electronic discovery, anticipating for that purpose “The Sedona Canada Principles–Addressing Electronic Document Production” in both French and English by year’s end. Currently, both versions are online and available for public comment at TSC’s website.
In addition, WG7 uploads its Sedona content to LexUM, a laboratory for judicial information at the
University of
Montreal (www.lexum.umontreal.ca/e-discovery). This website gives WG7 a Canadian identity and permits the development of forward-looking principles without the perception being that the Working Group is simply adopting decisions from WG1 and the American courts. In fact, membership in WG7 is limited to Canadian lawyers.
“We didn’t want an adverse reaction to the [Sedona Canada
] Principles. We wanted to make it a Canadian entity for Canadian lawyers, but we also wanted to use Sedona as a platform and benefit from their experience,” said Dominic Jaar, WG7 member and counsel for Bell in
Montreal, Quebec. The autonomy has enabled the Working Group to thrive while enlisting a wide variety of lawyers and legal scholars as well as judges from a majority of the Canadian provinces. In mid-September, members of Sedona met in the town of Banff in Alberta, Canada.
The Future of The Sedona Conference®
With the success and rapid expansion of the international Working Groups, TSC is currently considering creating additional Working Groups dedicated to electronic disclosure in England and Whales, Australia and
Asia. Given the growing importance of electronic information and the quest to find reasonable solutions that ensure disclosure while respecting existing protections, it seems inevitable that one day the Sedona Working Groups will be a mainstay in the worldwide legal community and a major influence in shaping dialogue for years to come. For more information on The Sedona Conference® or to join one of its Working Groups, visit www.thesedonaconference.org.
Note: “Sedona Watch” is a regular feature story that tracks the current developments from The Sedona Conference® and is exclusive to the Discovery Standard.
^ Return to top
Author Bio:
Cecil A. Lynn, III Esq. is Director of Industry Relations at LexisNexis® Applied Discovery®. Prior to joining Applied Discovery, Mr. Lynn was a trial attorney with the United States Department of Justice and before that, he was of counsel with Wasserman Comden & Casselman in
Los Angeles. Mr. Lynn regularly writes and speaks on topics related to electronic discovery.