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Reflections from the 6th Annual Sedona Conference® Institute Program on Staying Ahead of the eDiscovery Curve

Created on April 10, 2012

The Sedona Conference® Institute held its 6th Annual Program on Staying Ahead of the eDiscovery Curve at the end of March. As one of the event's corporate sponsors, Exterro's e-discovery counsel, Bob Rohlf attended and participated in the strategic discussions. I had a chance to speak with Bob about some of his key takeaways from the conference. Following is an excerpt from our conversation:

BARTHOLOMEW: For those who aren't familiar with the Sedona Conference Institute or the annual Program on Staying Ahead of the eDiscovery Curve program, can you briefly describe the event and talk about some of the experts who presented this year?

ROHLF: The Sedona Conference Institute is the continuing legal education arm of The Sedona Conference Working Group Series, which was established in 2002 to confront challenges faced by the legal system, including, of course, e-discovery. The “Staying Ahead of the E-Discovery Curve" conference is a program that began in 2007. It's an annual, two-day conference dedicated to the exploration of everything e-discovery, including case law, rules, key trends and best practices. The program is highly educational and distinguishes itself from other events by really promoting interaction between panels and attendees to foster a true dialogue around these important issues. Leading those discussions this year was a bevy of e-discovery luminaries, from judges, like Hon. David Waxse and Hon. Nan Nolan, to prominent attorneys and e-discovery experts, such as Ralph Losey, Jonathan Redgrave, Sherry Harris and Sedona's own Ken Withers . I was pleased to see Jerone English from Intel and Jonathan Palmer from Microsoft, as well as other thought leaders from the corporate legal side, who were able to relay some of the unique challenges that come along with managing e-discovery operations in-house.

BARTHOLOMEW: What were some of the common themes at this year's program?

ROHLF: As you can imagine, there was a lot covered during the conference, but if I had to pick a common theme for this year's program it would have to be the important role cooperation plays in e-discovery. It's a fundamental Sedona Conference message that seemed to find its way into just about every session. Judges have been pounding home the cooperation theme for years, and I could really pick up on the frustration they experience when litigants refuse to let down their adversarial guard. In one session, panel members role-played an “ideal" case meeting in which the opponents met face to face. In a civil discussion, each protected their client's interests while coming to consensus on case issues and discovery scope.

Both the concept of proportionality and the use of technology to facilitate discovery activities dominated the session on case law review. This is understandable in light of ongoing concern regarding the impacts of e-discovery costs and recent developments in the Da Silva Moore case (link). These themes continued to show up in other sessions.

BARTHOLOMEW: Did the event shed any new light on potential e-discovery rule changes?

ROHLF: The topic of potential rule changes was certainly one focus of the program. Like most attendees, I was really interested to hear what the judges had to say on this. Consistent with the predominant theme of the event, there was some interesting dialogue about formalizing cooperation in e-discovery and potentially incorporating some specific language into the Federal Rules of Civil Procedure (FRCP) to clarify what e-discovery behaviors are sanctionable and to what degree. However, opinions diverged on how exactly that could be accomplished and whether it was even appropriate to use the FRCP to promote something as elemental as cooperation. My observation is that the panel members are looking to results from the model orders and pilot programs rather than rules changes to address imbalances in e-discovery. No consensus was reached, but it made for some lively discussion.

BARTHOLOMEW: Did anything else stand out to you at the conference?

ROHLF: One thing that stood out was the lack of plaintiff's attorneys in attendance. A spot self-profile of the attendees revealed that the vast majority of the attendees were from the defense side of the table. At least one panelist suggested that the growing use of mobile devices and proliferation of social media acceptance will drive more plaintiff's attorneys to familiarize themselves with ESI and electronic discovery tools and techniques.

A related discussion centered on the growing breadth of e-discovery in our legal system as related to electronic communications. More than any time in history, people document all facets of their activities, intentionally or not. This is true in business as well as in personal activities. Email drives most business communication. IM, social media, Skype, etc. all get used to facilitate contact with one another. Each leaves an electronic signature that could become evidence in a case. Several panelists agreed that this ubiquity of electronic data will soon render e-discovery an unavoidable reality for almost all attorneys, many of whom only have a very cursory understanding of e-discovery rules and processes. Mastering e-discovery is becoming a “must do" for attorneys, whether they advise corporations or individuals.

For more information on the The Sedona Conference® Institute and this year's e-discovery program, click here.