Agenda

We may have had limited access to the courts during most of 2020—and well into 2021—but that hasn't prevented judges from issuing landmark eDiscovery decisions. Sanctions cases get the most attention, of course, and we've seen several. But the courts have also addressed the collection of ESI during a pandemic, privilege and work product protection, the increasing significance of privacy considerations, and the continued back-and-forth over ESI protocols. eDiscovery veteran Ken Withers has developed a short list of the "must know" decisions from the last several months, and he will be calling on some of your colleagues to present the case facts, holdings, and practical impacts.

As a follow-up to the 2019 and 2020 WG1 Annual Meeting sessions on protecting privileged ESI and alternatives to addressing privilege issues, WG1 formed the Privilege Log Brainstorming Group to determine what is and is not working in the privilege log process, develop approaches to mitigate the issues identified using technology to modernize the traditional log, and identify best methods for handling log disputes. The Brainstorming Group will ensure these approaches and methodologies are consistent with Federal Rule of Civil Procedure 1's mandate to "secure the just, speedy, and inexpensive determination" of every case, while at the same time ensuring that parties have the ability to obtain evidence necessary to litigate cases. It will also explore how we can move the law forward in a reasoned and just way. The Brainstorming Group will present its analysis and circulate a draft outline with some open questions for discussion with the membership.

The Internet of Things ("IoT") refers to the ability of everyday objects to connect to the Internet and to send and receive data. This panel will discuss obtaining discovery from, for example, internet-connected cameras; home automation systems; smart speakers and TVs; and wearables. The panel will discuss the challenges of preserving and collecting data from the IoT, including topics like security, access, collection, and use of data. The panel will also discuss the results of the IoT Brainstorming Group's work regarding whether Sedona should draft a Commentary on IoT.

Sitting at the intersection of the legal and tech sectors, eDiscovery suffers from under-representation by diverse personnel; perhaps even more so given that both sectors significantly under-represent minorities in every diverse category compared to the general population. Law firms and businesses are recognizing the tangible benefits of recruiting and promoting diverse legal talent. But many historical recruiting and retention practices may include unconscious bias that disadvantages diverse applicants and as well as employees seeking advancement. In this session our panelists will discuss specific changes that can be made improve recruiting, retention, and promotion of diverse eDiscovery lawyers.