The Sedona Conference Working Group Series

Authoritative, Meaningful, and Balanced Commentary. The Sedona Conference Working Group Series was launched in 2002 and represents the evolution of The Sedona Conference from a forum for advanced dialogue to an open think-tank confronting some of the most challenging issues faced by our legal system today. The first Working Group (WG1) met on October 17-18, 2002, and was dedicated to the development of guidelines for electronic document retention and production. The impact of its first publication - The Sedona Principles Best Practices Recommendations and Principles Addressing Electronic Document Production - was immediate and substantial. The Principles was cited in the Advisory Committee on Civil Rules Discovery Subcommittee Report on Electronic Discovery less than a month after publication of the first draft, and was cited in a seminal e-discovery decision in the Southern District of New York less than a month after that. As noted in the June 2003 issue of Pike & Fischer’s Digital Discovery and E-Evidence, “The Principles…influence is already becoming evident.” The rest, including enactment of the federal rules on e-discovery in 2006, is, as they say, history. We now have twelve Working Groups, described below.

How the Working Groups work

Working Groups begin with the same high caliber of participants as our Regular Season conferences, but are limited to approximately 35 core participants for the initial meeting and drafting efforts. Further, in lieu of finished papers being posted on the website in advance of a conference, thought pieces and other ideas are exchanged and the Working Group itself becomes the opportunity to create a set of recommendations, principles or other educational guidance. Working Group output is then put through a broad peer review process involving members of the entire Working Group Series and, where possible, critique at one of our Regular Season conferences, resulting in an authoritative, meaningful, and balanced final commentary for publication and distribution. The Sedona Conference Working Group Series Membership Program offers a vehicle for those who wish to support our mission and interact with others interested in tipping point issues in the areas of antitrust law, complex litigation, and intellectual property rights. Membership in the Working Group Series allows any interested jurist, attorney, academic, consultant, or expert to participate in Working Group activities, including drafting team projects, Working Group meetings, and dialogue on current works-in-progress. As a Member of The Sedona Conference Working Group Series you will have access to the Working Group Members Only areas of this web site, where draft works in progress are posted for comment by others in the Working Group, references and discussion forums are available, and, if you “opt in” to the roster for a specific Working Group, you will receive announcements about that particular Working Group’s events, notices seeking applications for drafting teams and brainstorming groups, and notices of the posting of draft works-in-progress for comment. Join The Sedona Conference Working Group Series. Once you join the Working Group Series, the title of each Working Group will become a link and you will be able to access each Working Group’s online activities. The current Working Groups are:

The mission of Working Group 1 is to develop principles, guidance and best practice recommendations for information governance and electronic discovery in the context of litigation, dispute resolution and investigations. The group released the first public comment draft of The Sedona Principles in March 2003, and the impact was immediate and substantial. Within a few weeks, The Sedona Principles was cited by the Civil Rules Advisory Committee Discovery Subcommittee as one of the reasons to focus on possible amendments to the Federal Rules of Civil Procedure, and it was cited in the seminal Zubulake case in the Southern District of New York. Since then, WG1 has published updated editions of The Sedona Principles and several companion works, including guidelines for electronic document management, an authoritative glossary of e-discovery and electronic records management terms, several commentaries on e-discovery related topics, and cooperation guidance for trial lawyers, in-house counsel, and the judiciary.

The mission of Working Group 2 was to develop principles and best practices addressing protective orders, confidentiality issues, sealing orders, and motions to vacate or modify orders to permit public access. The Working Group issued its draft report May of 2005. The report was the subject of a series of “town hall” meetings held in Newark, Dallas, Denver, and Birmingham, and extensive public comment. The Working Group reconvened in April 2006 to work on the “final” report, which was published in early 2007. The report has been incorporated into the curriculum of several judicial education conferences and cited favorably by members of the United States Judicial Conference in their negotiations with Congress on rules reform in this area.

The mission of Working Group 3 was to identify where economic analysis can make an important contribution to the reasoned development of the antitrust laws, and create recommendations and best practices regarding evidence from economic experts. The Working Group developed a commentary on the role of economics in antitrust that was released for public comment in August of 2005 and was the subject of extensive dialogue at the fall 2005 Sedona Antitrust Conference. The group finalized this commentary in 2006. The commentary was presented to the Civil Rules Advisory Committee Discovery Sub-Committee on the issue of disclosure of expert reports in 2007.

The mission of Working Group 4 was to create guidelines to help courts resolve disputes on the intersection of the patent and antitrust laws. Extensive dialogue about the initial draft work product was conducted at the fall 2005 Sedona Antitrust Conference, the 2006 Sedona Patent Litigation Conference, and during subsequent meetings of the Working Group. A public comment version of the Introduction was published in 2007. The final Commentary was published in December 2010.

The mission of Working Group 5 was to develop a set of best practices for the courts to facilitate claim construction in patent litigation, and to maximize efficiency and minimize inconsistency in the Markman process consistent with F.R.C.P. 1. The Working Group issued a public comment version of its recommendations in June 2006. A final version was published in February 2012.

The mission of Working Group 6 is to address issues that arise in the context of e-information management and e-disclosure for organizations subject to litigation and regulatory oversight in multiple jurisdictions with potentially conflicting international laws. The group serves as a global forum and think-tank for sharing information, developing best practices, and educating on matters of national and international law and policy regarding the discovery, management, disclosure, and protection of electronically stored information. Working Group 6’s first publication, the Framework for Analysis of Cross-Border Conflicts, was released in 2008 and cited shortly thereafter by the European Commission’s Article 29 Working Party as an important contribution to the emerging international dialogue on disclosure and privacy. Working Group 6 also hosts an online International Overview of Discovery Data Privacy and Disclosure Requirements and has held meetings and educational programs in England, Spain, and Bermuda.

The mission of Working Group 7 is to create forward-looking principles and best practice recommendations for lawyers, courts, businesses, and others who regularly confront e-discovery issues in Canada. The Sedona Canada Principles was released in early 2008 (in both English and French) and was immediately recognized by federal and provincial courts as an authoritative source of guidance for Canadian practitioners. It was explicitly referenced in the Ontario Rules of Civil Procedure and practice directives that went into effect in January 2010. The second edition of The Sedona Canada Principles was published in 2015. Working Group 7 provides materials and speakers for The Sedona Conference InstituteSM program and bar association conferences across the country.

The mission of Working Group 8 was to better understand how to achieve the public interest in deterring and punishing reprehensible misconduct by exploring procedures and criteria for the imposition of appropriate punitive damages awards that reflect jurisprudential guidelines and vindicate the social utility of their deterrent and punitive functions.

The mission of Working Group 9 is to create guidelines that will help to clarify and guide the evolution of patent damages and remedies considerations to encourage patent damages and remedies law to remain current with the evolving nature of patents and patent ownership.

The mission of Working Group 10 is to develop best practices and recommendations for patent litigation case management in the post-AIA environment. The Working Group Steering Committee is composed of members of the federal trial and appellate court benches, including judges in the Patent Pilot Program, along with litigators who primarily represent patentees and those who primarily represent accused infringers in federal court, the Patent Office and the ITC.

The mission of Working Group 11 is to identify and comment on trends in data security and privacy law, in an effort to help organizations prepare for and respond to data breaches, and to assist attorneys and judicial officers in resolving questions of legal liability and damages. The Working Group will develop best practices drawn from civil litigation arising from data security and privacy violations, legislative governance of data security and privacy, and regulatory enforcement of data security and privacy laws, in order to help organizations take action before and after a data breach to minimize their legal exposure, to inform affected parties of their rights and responsibilities, and to assist in the coordination of regulatory, law enforcement, and judicial responses to data breach and related incidents.

The mission of Working Group 12 is to develop consensus and non-partisan principles for best practices in managing trade secret litigation and well-vetted recommendations for consideration in protecting trade secrets, recognizing that every organization, both large and small, has and uses trade secrets; that trade secret disputes frequently intersect with other important public policies such as employee mobility and international trade; and that trade secret disputes are litigated in both state and federal courts.