The Sedona Conference Working Group 1 Annual Meeting 2020

Date: 
Wednesday, October 28, 2020 - 12:00pm to Thursday, October 29, 2020 - 4:00pm

Date: Wednesday-Thursday, October 28 and 29, noon to 4 p.m. (EDT) each day

Location: Online (Zoom)

The 2020 Annual Meeting of The Sedona Conference Working Group on Electronic Document Retention and Production (WG1) will be held online on Wednesday, October 28, and Thursday, October 29.

Please join us from noon to 4 p.m. (EDT) each day for a virtual program that will include sessions on the following topics:

  • Social, Technological, and Ethical Challenges of Electronic Evidence in Criminal Cases
  • Discovery from Third-Party Apps
  • Moving the Law Forward: Reinventing the Privilege Log
  • Case Law Review: Significant eDiscovery Decisions from 2020
  • Uniformity in Filing Under Seal
  • Voices from the Bench: Exploring the Judicial Perspective for 2020 and Beyond

The Sedona Conference will seek CLE accreditation in accordance with rules and regulations set forth by individual jurisdictions for virtual meetings. Various state MCLE authorities require that we verify your live, active participation throughout the program. 

We look forward to seeing you, virtually, on October 28 and 29.

 

Confirmed Dialogue Leaders

Hon. Cathy Bissoon
U.S. District Court, Western District of Pennsylvania

Pittsburgh, PA, USA
Ellen Blanchard
Norton Rose Fulbright

Mercer Island, WA, USA
Kevin F. Brady
3M

Avondale, PA, USA
Travis Brown
Shutts & Bowen LLP

Nashville, TN, USA
Bethany Caracuzzo
Pritzker Levine LLP

Oakland, CA, USA
Hon. J. Michelle Childs
U.S. District Court, District of South Carolina

Columbia, SC, USA
Brian D. Clark
Lockridge Grindal Nauen PLLP

Minneapolis, MN, USA
Andrea L. D'Ambra
Norton Rose Fulbright US LLP

New York, NY, USA
Justice Timothy S. Driscoll
Supreme Court of the State of New York
Nassau County Supreme Court

Mineola, NY, USA
Hon. Anthony D. Edwards
Colorado State Court, Sixth Judicial District

Silverton, CO, USA
Hon. Allison Goddard
U.S. District Court, Southern District of California

San Diego, CA, USA
Andrew D. Goldsmith
U.S. Department of Justice

Washington, DC, USA
Jeannine Kenney
Hausfeld

Philadelphia, PA, USA
Greg M. Kohn
Nagel Rice, LLP

Roseland, NJ, USA
Endel Kolde
Institute for Free Speech

Federal Way, WA, USA
Warren G. Kruse II
UnitedLex

Boynton Beach, FL, USA
Hon. Barbara M.G. Lynn
U.S. District Court, Northern District of Texas

Dallas, TX, USA
Hon. William Matthewman
U.S. District Court, Southern District of Florida

West Palm Beach, FL, USA
Paul H. McVoy
Repario Data

Milford, CT, USA
Karen Mitchell
U.S. District Court, Northern District of Texas

Dallas, TX, USA
Hon. Kristen L. Mix
U.S. District Court, District of Colorado

Denver, CO, USA
Michael Oppenheimer
Defender Services Office - Training Division

Washington, DC, USA
Timothy Michael Opsitnick
TCDI

Cleveland, OH, USA
Hon. Katharine H. Parker
U.S. District Court, Southern District of New York

New York, NY, USA
Hon. Andrew J. Peck (ret.)
DLA Piper

New York, NY, USA
Tony Petruzzi
Tucker Ellis LLP

Cleveland, OH, USA
Niloy Ray
Littler Mendelson P.C.

Minneapolis, MN, USA
Jodi Munn Schebel
Bowman and Brooke, LLP

Bloomfield Hills, MI, USA
Lauren Schwartzreich
Littler Mendelson P.C.

New York, NY, USA
Martin T. Tully
Redgrave LLP

Chicago, IL, USA
Craig W. Weinlein
The Sedona Conference

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

Phoenix, AZ, USA
Sean Zacharias
California Department of Justice

Sacramento, CA, USA

AGENDA

Day 1, Wednesday, Oct. 28, 2020 (all times ET)
Time Session Panelists
12:00-12:15 p.m. Welcome and Introductions Craig Weinlein, Kevin Brady, Martin Tully
12:15 p.m.-1:45 p.m. [Session 1] Social, Technological, and Ethical Challenges of Electronic Evidence in Criminal Cases

Hon. Anthony Edwards, Andrew Goldsmith, Del Kolde, Hon. Barbara M.G. Lynn, Michael Oppenheimer, Niloy Ray*

 
 

Events of 2020 have brought into sharp focus the importance of electronic evidence in law enforcement, criminal defense, and related civil rights litigation. Electronically stored information (ESI) generated by 911 calls, police body cams, news media coverage, bystanders’ cell phones, surveillance cameras, social media postings, text messages, law enforcement databases, third-party geolocation records, and more provide rich sources of evidence for both prosecutors and defendants. But these new sources of ESI come with new social, technological, and ethical challenges for their preservation, production, and use at trial, including:

  • The fundamental duty of technical competence (MRPC 1.2, Comment 8)
  • The duty of diligent representation (MRPC 1.3, Comment 1)
  • The confidentiality of information (MRPC 1.6, Comments 18 and 19)
  • The duty of candor towards the tribunal (MRPC 3.3)
  • Respect for the rights of non-parties (MRPC 4.1 through 4.4)
  • Proper supervision of associates and legal support personnel (MRCP 5.1 through 5.3)

A panel of experienced criminal justice professionals, including a state prosecutor, federal defense attorney, state trial judge, and federal trial judge, will discuss cases taken from current headlines and provide advice for effective, ethical, and socially responsible advocacy

 

  
1:45-2:00 p.m Break  
2:00-3:00 p.m. [Session 2] Case Law Review: Significant eDiscovery Decisions from 2020 Kenneth Withers*,  Hon. J. Michelle Childs, Hon. Allison Goddard, Hon. Andrew Peck (ret.), Timothy Opsitnick
  The courts may have been physically closed for much of 2020, but civil litigation continued and the volume of decisions on eDiscovery hardly abated. The issues are the same: preservation, proportionality, process, production, privilege, post-judgment costs. Add to this “P” soup: discovery from nonparties, novel forms of electronically stored information, technology-assisted review, and the specter of sanctions. Veteran eDiscovery storm-chaser Ken Withers is joined by a panel of dialogue leaders who will highlight 20 significant court decisions from 2020 that every eDiscovery litigator needs to know.   
Time: 3:00-4:00 p.m. [Session 3] Discovery From Third-Party Apps Sean Cotulla, Greg Kohn*, Warren Kruse, Paul McVoy, Hon. Kristen Mix
 

The explosion of social media applications, the internet of things, and other mobile device applications has created the ability of users to have new technologies and communication tools at their fingertips. People now have the ability to create endless amounts of data, interact with numerous devices from anywhere, and be tracked by their device and its applications. This presents numerous issues in civil and criminal litigation. Attorneys must now ask “What data exists?,” “How do we find it?,” “Is it discoverable?,” and “How do we collect it?” The answer is not always apparent. There is little guidance regarding how courts should treat discovery from third-party applications outside of the social media context. This panel will address how to obtain discovery from third-party applications, the difficulty in obtaining that discovery, and if different rules apply to discovery from third-party applications.

  
Day 2, Thursday, October 29, 2020 (all times ET)
Time Session Panelists
12:00 — 1:00 [Session 4] Our Quest for Best Practices and Uniformity in Filing ESI Under Seal Hon. Cathy Bissoon, Bethany Caracuzzo, Brian Clark*, Hon. Timothy Driscoll, Karen Mitchell, Tony Petruzzi, Jodi Munn Schebel
  The Federal District Courts differ significantly as to the procedures practitioners must follow in order to file documents under seal; variously applying the Federal Rules of Civil Procedure, local rules, e-filing procedures, and in some districts, judges’ individual practice guides and standing orders, with no national uniformity. In many districts, the time and expense of complying with the requirements are burdensome to both litigants and the courts. The Working Group has undertaken a survey of the various District Courts’ approaches to filing ESI and documents under seal in an effort to develop a uniform rule on the procedures for filing under seal that lessens the burden and expense on both the courts and practitioners, and creates consistency between and among jurisdictions. The Working Group will provide its draft rule to the membership at the annual meeting for comments and feedback, and will also discuss the Working Group’s ideas on a more comprehensive Commentary/Guide it is developing, which will incorporate the uniform rule and legal basis/guidance for its development, as well as provide an analysis of current caselaw and standards relating to the sealing of records.  

1:00-2:00 p.m.

 [Breakout Session] Reinventing the Privilege Log

Andrea D’Ambra*, Ellen Blanchard, Travis Brown, Jeannine Kenney, Hon. Katharine Parker
 

At the 2019 WG1 Annual Meeting, representatives of different constituencies led the dialogue to identify what is and is not working with the traditional process used for protecting privileged ESI from production. In part 2 of this series, we will explore alternatives to addressing privilege issues in discovery that are aligned with Federal Rule of Civil Procedure 1’s mandate to “secure the just, speedy, and inexpensive determination” of every case. In conjunction with this session, WG1 solicited proposals on how to improve the privilege log process. Our dialogue leaders will evaluate the proposals in advance of the meeting and identify a select number of authors to present their ideas during this session.

  
2:00-2:15 p.m. Break  
2:15-3:45 p.m [Session 5] Voices From the Bench: Exploring the Judicial Perspective for 2020 and Beyond Lauren Schwartzreich*, Hon. Cathy Bissoon, Hon. J. Michelle Childs, Hon. Timothy Driscoll, Hon. Allison Goddard, Hon. Barbara Lynn, Hon. William Matthewman, Hon. Kristen Mix, Hon. Katharine Parker
  2020, the year that proudly proclaims “hold my beer,” has brought previously unfathomable changes to the court system and practice of law. Technology has at times degraded and yet saved the judicial system during this unprecedented period of remote work and virtual litigation. Reflecting back on the year-that-will-not-end, and looking to the future, this panel of remarkable federal and state court judges will explore the role of virtual litigation from the court’s perspective and predict whether the mitigating role of technology and virtual litigation in the current pandemic will have long term implications for the court system.   
3:45-4:00 p.m. Wrap-up  

* Panel Moderator