WG1 2023 Midyear Meeting Agenda

Time  Session  Panelists
(All times PDT) Wednesday, April 26, 2023 (*=moderator)
5:30 — 7:30 p.m. Welcome reception  
  Thursday, April 27, 2023  
7:30 — 8:30 a.m. Breakfast & sign-in  
8:30 — 8:45 a.m. Welcome and Announcements Claudia Morgan, Craig Weinlein
8:45 — 10:15 a.m. [Session 1] ESI Case Law in 2023: Key Trends and Developments  
  Discovery case law is challenging lawyers to more effectively handle basic and advanced ESI issues for their clients. With insightful decisions on preservation, structured data, privilege logging, the reasonableness of searches conducted through Microsoft 365, and other hot-button issues, this session will provide practitioners with an understanding of the top eDiscovery court decisions from the past six months and discuss how they may affect discovery practice going forward in 2023. Hon. Noelle Collins, Phil Favro*, Michelle Newcomer, Tony Petruzzi
10:15 — 10:45 a.m. Morning Break  
10:45 — 11:30 a.m. [Session 2] Federal Rules Update with Hon. Robin L. Rosenberg, Chair, Advisory Committee on Civil Rules  
  The Honorable Robin L. Rosenberg of the Southern District of Florida, Chair of the Advisory Committee on Civil Rules, will join our panelists to provide an update on the latest developments in federal civil rulemaking, to review the status of potential amendments, including those relating to MDLs and privilege logs, and to discuss potential impact of these amendments on discovery practice. David BurmanRoss Gotler*, Hon. Robin Rosenberg
11:30 a.m. — 12:30 p.m. [Session 3] What’s the Verdict: Updating The Sedona Conference Commentary on Rule 34 and Rule 45 “Possession, Custody, or Control”  
  It has been six years since WG1 published its Commentary on possession, custody, or control, discussing the three standards that developed in the various circuits to determine whether a responding party has possession, custody, or control of ESI: the Legal Right standard, the Legal Right Plus Notification standard, and the Practical Ability standard. That Commentary analyzed how each of the federal jurisdictions handled this issue and ultimately recommended the Legal Right test as the most reasoned standard. Since 2016, numerous cases have addressed this issue, and many have cited to the Commentary. Beginning in 2023, a brainstorming group will determine whether Sedona should update this Commentary. This panel will discuss the Brainstorming Group’s findings and recommendations to date.   Vince Carnevale, Ashley Picker Dubin, Jessica Hasen Tessa Jacob*, Jon Polenberg
12:30 — 1:30 p.m. Lunch (provided)  
1:30 — 2:30 p.m. [Session 4] Recovering the Costs of eDiscovery: Time to Bring the Interpretation of Section 1920 into the 21st century?  
  A prevailing party has the right to recover certain costs associated with litigation pursuant to 28 U.S.C. § 1920, as well as statutory cost-shifting provisions. Prevailing parties may seek to recoup costs attendant to eDiscovery, given the expense associated with collecting, processing, and producing electronically stored information (ESI). However, most federal courts confronting the issue under various standards often have determined that eDiscovery costs are recoverable only in very limited circumstances. The analysis tends to ask whether the costs—either literally or by analogy—are akin to “making a copy,” although how that is defined may vary by court and Circuit. Join us for a session exploring the varied approaches to recovery of costs, including in the settlement context, and a conversation about whether this conceptual framework makes sense in 2023. Hon. Maria AuderoTracy Greer, Paul McVoy, Meghan Podolny*, Jennifer Scullion
2:30 — 3:30 p.m. [Session 5] Mobile Device Discovery: Challenges and Guidance  
  Gone are the days when the contents of mobile devices, specifically phones and tablets, could be presumed to be outside of the scope of discovery obligations. Discovery of mobile device data affects all parties (and often non-parties) in litigation and investigations, whatever their role or size of organization. Yet, there are few sources of practical guidance on the topic. This panel will explore (i) when mobile device data (including third-party chat or messaging applications) may or should be collected; (ii) the implications of BYOD and other company policies and procedures around possession, custody, or control of mobile device data; (iii) privacy issues that arise when personal mobile devices are collected; and (iv) practical guidance on collecting mobile device data, including considerations for collecting data from third-party chat or messaging applications. Shauna Itri, Dennis Kiker*, Warren Kruse, Robin Perkins, Deric Yoakley
3:30 — 4:00 p.m. Afternoon Break  
4:00 — 5:00 p.m. [Session 6] Cybernetic Eyes May Be the Mirror of Our Soul: What Artificial Intelligence Can Teach Us about Human Biases  
  As Paulo Coelho noted, “[t]he eyes are the mirror of the soul and reflect everything that seems to be hidden; and like a mirror, they also reflect the person looking into them.” Similarly, humans and artificial intelligence software make decisions based on information about a world built, measured, perceived, and described by humans. In this way, both humans and AI models incorporate existing conscious and unconscious biases, group exclusions, and systemic inequities. Unlike inputs and analysis in human thinking, inputs and analysis in AI are more identifiable and therefore serve as useful representation of how human biases proliferate and impact decisions—and in a more transparent fashion. This panel will use artificial intelligence examples to discuss how everyone can identify and confront bias in our own human mental models, and take steps to be more equitable and inclusive. Aron AhmadiaKelly AthertonKimberly Duplechain*,Tara Emory, Hon. Lauren King
5:00 — 7:00 p.m. Reception (guests invited)  
  Friday, April 28, 2023  
7:30 — 8:30 a.m. Breakfast & sign-in  
8:30 — 10:00 a.m. [Session 7] Voices from the Bench: The Judicial Perspective for 2023 and Beyond
  This session will present a wide range of judicial perspectives on eDiscovery trends, critical issues, and best practices.  The judges will consider the impact of emerging eDiscovery case law and provide guidance on preventing eDiscovery pitfalls and strategies to get out of them.   Hon. Maria AuderoHon. Noelle Collins, Hon. Young Kim, Hon. Lauren King, Sandra Metallo-Barragan*, Hon Robin Rosenberg,
10:00 — 10:30 a.m. Break  
10:30 — 11:15 a.m. [Session 8] Working Group 1 Works in Progress: Updates from Ongoing Drafting Team Projects   
  This session will provide short status updates from the following drafting teams that are otherwise not presenting at the Midyear Meeting and allow for dialogue about any pending issues on the various projects: Privilege Logs, Multidistrict Litigation Best Practices, Database Principles, Discovery Sanctions,  and eDiscovery Implications of the Internet of Things.   Laura Hunt, Greg Kohn, Eric Mandel, Claudia Morgan*, Meghan Podolny, Gerard Quinn
11:15 — 12 noon [Session 9] ESI Protocols in 2023: What Works, What Does Not, How to Move Forward, and Should Sedona Have a Voice?  
  This panel will evaluate current ESI protocol trends, with emphasis on when ESI protocols are appropriate, technical components, and both common and creative provisions. The panel will discuss lessons learned from pointed case law and engage in a solutions-driven dialogue on how best to make ESI protocols work for all parties and the court when warranted. Hon. Young Kim, Scott Milner, Kyle Pozan, Robb Snow
12 noon — 1:00 p.m. [Session 10] Ethical Obligations in ESI Disclosure and Negotiation  
  This panel will explore the ethical obligations for requesting and responding parties with respect to ESI requests, disclosures, and negotiations. The panel will consider hypotheticals and discuss the interplay between zealous advocacy and candor in the context of drafting requests, discovery conferences, responding to written discovery, the particulars of search methodology, and validation.  The panel will address applicable Professional Rules of Responsibility, Federal Rules, related case law, and applicable Sedona principles. Jeannine Kenney, Daniel Lim, Leeanne Mancari, Maria Salacuse*
1:00 p.m. — 1:15 p.m. Closing remarks and wrap-up Craig Weinlein
1:15 p.m. Adjournment & Grab-and-go lunch (provided)  
Thursday, April 27, 2023 - 8:30am to Friday, April 28, 2023 - 1:15pm