The 15th Annual Sedona Conference Institute: Pre-Trial Practice in a Post-Pandemic World

Date: 
Monday, May 16, 2022 - 11:30am to Wednesday, May 18, 2022 - 5:00pm

Time: 
All times listed are Eastern Daylight Time (EDT) 

Location:
Online(Zoom)

The theme for this year’s 15th annual Sedona Conference Institute program on May 16-18, 2022, is “Pre-Trial Practice in a Post-Pandemic World.” The program’s goal is to help lawyers re-engineer their legal and advocacy skills for an online or hybrid litigation environment. This includes conducting client interviews and conferences with opposing counsel or with the court, motion practice, and other non-jury proceedings. 

Join us for this online program where experts from the bench and bar will provide practical advice and views on how the forces shaping the legal profession will operate post-pandemic. 

Veteran litigator, author, and lecturer, Kenneth J. Withers, will be chairing this year’s TSCI program, drawing on the collective expertise of various Sedona Conference Working Group leaders, other experienced professionals, plus invited state and federal judges and regulators, to discuss:

  • What will the future hold for virtual and hybrid practice, with a focus on discovery and pre-trial procedure?
  • Which new eDiscovery decisions are most consequential for practitioners and what issues are likely to surface for the remainder of 2022?
  • What has been the impact of the 2015 Amendments to the Federal Rules of Civil Procedure reintroducing proportionality factors into the scope of discovery and how should parties plan going forward?
  • What are the implications of new sources of discovery such as ephemeral messaging, the Internet of Things, and cloud computing, and how should parties cost-effectively incorporate them into their overall discovery plans?
  • What challenges exist to non-party and foreign discovery and how can parties obtain evidence to support a claim or defense consistent with the laws of foreign countries and privacy requirements?
  • How can parties assert or challenge attorney-client privilege claims, including understanding the traps and complications associated with privilege logging and dispute adjudication?
  • What are the legal, technical, and logistical hurdles to authenticating and admitting electronic evidence, including some of the challenges of persuasive advocacy outside the traditional courtroom?
  • Which ethics rules are implicated by hybrid and virtual practice, what issues have come before courts and bar disciplinary bodies during the pandemic, and how can you avoid running afoul of these proscriptions?

The agenda for our program is posted below. Please mark your calendars now and look for an email announcing our 2022 TSCI panel moderators and faculty.  

Chair

Kenneth J. Withers
The Sedona Conference
Phoenix, AZ, USA
 

Faculty

Scotiabank

Toronto, ON, CA

NA
University of Cincinnati College of Law

Cincinnati, Ohio

Littler Mendelson, P.C.

New York, NY, USA

Nichols Kaster, PLLP

Minneapolis, MN, USA

Robbins Geller Rudman & Dowd LLP

San Diego, CA, USA

U.S. District Court, Western District of Pennsylvania

Pittsburgh, PA, USA

IBM

Armonk, NY, USA

Merit Systems Protection Board

Oakland, CA, USA

Paul Hastings LLP

Palo Alto, CA, USA

California Department of Justice

Sacramento, CA, USA

Adobe Inc.

San Jose, CA, USA

Innovative Driven

Alpine, UT, USA

Arnold & Porter

Menlo Park, CA, USA

U.S. District Court, Eastern District of Missouri

St. Louis, MO, USA

National Labor Relations Board

Washington, DC, USA

University of Waterloo

Waterloo, ON, CA

Xerox Corp

Webster, NY, USA

Dentons

New York, NY, USA

Husch Blackwell LLP

Kansas City, MO, USA

Tensegrity Law Group

McLean, VA, USA

Shaw Keller LLP

Wilmington, DE, USA

Ahdoot & Wolfson, PC

New York, NY, USA

Sidley Austin LLP

Chicago, IL, USA

Redgrave LLP

Chicago, IL, USA

JAMS

San Jose, CA, USA

Humana

Louisville, KY, USA

US Courts

Chicago, IL, USA

Consumer Financial Protection Bureau

Washington, DC, USA

Northwestern University

Chicago, IL, USA

DLA Piper

New York, NY, USA

Tucker Ellis LLP

Cleveland, OH, USA

Bradley Arant Boalt Cummings LLP

Nashville, TN, USA

Penry|Riemann PLLC

Raleigh, NC, USA

North Carolina Business Court

Winston-Salem, NC, USA

Littler Mendelson P.C.

New York, NY, USA

WilmerHale

Palo Alto, CA, USA

Arizona Court of Appeals

Phoenix, AZ, USA

U.S. District Court, Eastern District of Louisiana

New Orleans, LA, USA

The Sedona Conference

Phoenix, AZ, USA

Agenda


Time Session Panelists
  Monday, May 16 (all times ET) * Panel Moderator
11:15 — 11:30 Log-in  
11:30 — 11:45 Welcome & Overview Withers
11:45 — 1:15

View from the Bench: Where are the Courts Headed? 

Fleissig, Hedges, Kleinberg, Thumma, Withers*
 

In the past two years, courts have been forced to leap ten years ahead in technology adoption and law firms have been forced to accommodate entirely new ways of practice. Individual lawyers and their clients have been forced to adapt as well. In the process, we've found entirely new ways to deliver legal services and adjudicate disputes, from client interviews to jury trials. Some strategies have worked; others not so much. But we have the benefit of close study of these rapid changes, and the consensus is that we are not going back to the "old ways" of doing things. In this session, a panel of state and federal judges will reflect on their own experience and that of their colleagues and map out what they think the future holds for the "new ways" of virtual and hybrid practice, with special emphasis on discovery and pre-trial procedure. 

 

1:15 — 1:45 Break  
1:45 — 3:15

eDiscovery Case Law Update: The Beat Goes On 

Allman, Favro*, Gaston, Grossman, McShain, Petruzzi, Robinson
 

The courts have been physically closed for most of the last two years, but litigants were still litigating, and judges were still handing down significant decisions on eDiscovery issues, including preservation, proportionality, form of production, privilege, spoliation, and more. EDiscovery scholar and case law tracker Phil Favro will lead a lively panel of veteran practitioners to dissect some of the more significant of these decisions and forecast some of the legal issues expected to surface in the remaining months of 2022.

 

 
  Tuesday, May 17 (all times ET)  
11:15 — 11:30 Log-in   
11:30 — 12:45

Crafting Requests and Responses Under Rule 34

Bailey*, Bays, Borrowman, Peck
 

Recent amendments to the Federal Rules of Civil Procedure re-introduced proportionality factors into the permitted scope of discovery with the expectation that requesting parties will use them to craft focused requests and added provisions spelling out the responsibilities of responding parties. Boilerplate requests and responses are out, and "reasonable particularity" is in, but what does this mean in practice? A panel of experienced practitioners from both sides of the "v" discuss the impact of these changes and provide guidance for going forward.  

 

 

12:45 — 1:15 Break  
1:15 — 2:30 eDiscovery Cutting Issue 1: It's Not Just Email Anymore

Alleyne*, Cotulla, Evans, Schwartzreich

 

 

EDiscovery exploded on the scene 25 years ago with the widespread adoption of networked computers and email in business, government, and personal life. This resulted in an explosion of the volume of discoverable information and a proliferation of formats and media. But discovery limited to email and word processing documents seems quaint today, with the arrival of social media, ephemeral messaging, databases, the Internet of Things, and cloud computing. Goodness knows what new medium is next on the horizon. This session explores the implications of this proliferation of new sources of discovery and provides practical guidance for cost-effectively incorporating them into an overall discovery plan.

 

 

 
2:30 — 3:00 Break  
3:00 — 4:15

eDiscovery Cutting Issue 2: It's You and Me Against the World, Baby

Backhouse, Jacob*, Jameson, Kenney, Melcher
 

One of the unique aspects of eDiscovery that sets it apart from conventional discovery is that the data being sought is often found on servers that are in the "possession, custody, or control" of non-party entities who provide computer services to one or more parties. These may be entirely independent entities such as Internet service providers or may be subsidiaries or parent entities of a party who operate computer networks for a consortium. In addition, these sources of discoverable data may be located outside of the immediate jurisdiction of the court, in foreign countries, or even "in the cloud," wherever that is, presenting a host of challenges in navigating different privacy and data protection regimes, data import/export controls, and even "state secret" restrictions. This session outlines the various challenges to non-party and foreign discovery and provides practical approaches to get the evidence needed to support a claim or defense without committing a privacy violation or creating an international incident. 

 

 

 
  Wednesday, May 18 (all times ET)   
11:15 — 11:30 Log-in  
11:30 — 12:45 Establishing and Protecting (or Challenging) Privilege Claims Grossman*, Harradine, Kelston, Peck, Presnell, Want
 

There are exceptions to the discovery of some very narrow categories of otherwise relevant data, but the law surrounding attorney-client privilege and work product protection is complicated and highly nuanced. Properly identifying privileged or protected data, and defending or challenging that identification, can be costly and time consuming. The advent of eDiscovery added technical complications and sheer volume to the task. Both sides of the "v" in civil litigation have good reasons to be concerned, and some procedural rules are in place to facilitate cooperation in this area, but the process of privilege logging and dispute adjudication is still burdensome, with many traps for the unwary. This session explores these challenges and provides some creative solutions, based on the experience of veteran civil litigators and the advice of judges who have made tough decisions in this field.

 

 

 
12:45 — 1:15 Break  
1:15 — 3:00 Making the Record Bissoon, Chaikovsky, Fishman, Keller, Kolasinsky*, Selwyn
 

The goal of discovery in civil litigation is to document facts that support the claims and defenses of the parties, but it doesn't do the parties any good if the resulting discovery isn't admissible as evidence in court or if the presentation of the evidence doesn't result in a clear record of the proceedings that will support a judgment and a possible appeal. Collecting eDiscovery in forms that will be admissible and presenting that evidence clearly was complicated enough in the pre-pandemic world, and it is more complicated in the remote or hybrid litigation environment. This panel explores the legal, technical and logistical hurdles to authenticating and admitting electronic evidence, including some of the challenges for persuasive advocacy outside the traditional courtroom.

 

 

 

 
3:00 — 3:30 Break  
3:30 — 4:45 Ethics of Virtual or Hybrid Practice Blaustein, Hedges, King, Muchman, Riemann*
 

 

Virtual and hybrid practice poses a number of professional responsibility questions, some of them obvious and others subtle. It should be a given that attorneys have a responsibility to conduct themselves professionally, even from a home office (although we have some examples of "lawyers behaving badly"), but how many have considered the possibility that they may be practicing virtually outside of their bar jurisdiction? Have they instituted appropriate data security? Are they treating colleagues, opposing counsel, and court personnel with the same respect that they would in person? Are they keeping current with ever-changing local rules and protocols? This panel presents some of the issues that have come before court and bar disciplinary bodies during the pandemic, explains the rules that apply, and provides guidance to keep you on the straight and narrow. The ABA Model Rules will be addressed in this discussion.

 

 

 

 
4:45 — 5:00 Closing Remarks and Announcements Weinlein, Withers

 

Date: 
Monday, May 16, 2022 - 11:30am to Wednesday, May 18, 2022 - 5:00pm