WG1 Annual Meeting 2021 Agenda

Time Session Panelists
  Wednesday, October 20, 2021 (all times EDT)  
7:30 — 8:30 a.m. Breakfast & sign-in  
8:30 — 8:45 a.m. Welcome and Announcements Craig Weinlein, Martin Tully
8:45 — 10:15 a.m. [Session 1] Case Law Review: Key eDiscovery and ESI Decisions from 2021  
  2021 has ushered in several ESI developments regarding discovery affecting lawyers and litigants alike. With new wrinkles in longstanding topics like proportionality and sanctions to cutting-edge trends with forensic exams, family production practices, and the interplay between procedural and evidentiary rules, this session will provide practitioners with an understanding of the top eDiscovery court decisions issued so far this year. Kevin Brady, Phil Favro*, Kelly McNabb, Niloy Ray, Hon. Michelle Sheehan, Ken Withers
10:15 — 10:45 a.m. Morning Break  
10:45 — 12:00 noon [Session 2] Privilege Logs v. 2021  
  Privilege logging in today’s digital world can consume hundreds of thousands of dollars unnecessarily. A reassessment of privilege log requirements appears to be gaining ground, particularly since the Civil Rules Advisory Committee is considering possible amendments to address systemic privilege log problems. Continuing The Sedona Conference’s tradition of dedicating sessions about privilege logs at WG1 meetings, representatives of different constituencies will lead the dialogue on the status of the Privilege Log drafting team’s efforts. Kelly Atherton, Rebekah Bailey, Hon. Kimberly C. Johnson, Claudia Morgan, Hon. Tom Vanaskie
12:00 — 1:00 p.m. Lunch (provided)  
1:00 — 2:15 p.m. [Session 3] Exploring the Effective Use of Discovery-Related Sanctions  
  The Sedona Conference WG1 Sanctions Brainstorming Group performed a holistic analysis on the application and effectiveness of discovery-related sanctions available under the Federal Rules of Civil Procedure. Panelists from the Brainstorming Group will discuss their findings on how sanctions are being used in discovery, the impact of the inconsistent application of sanctions, and the interplay between sanctions available under the Rules and the court’s inherent authority. The panel will provide guidance on what more can be done to resolve or navigate inconsistencies in the law and how sanctions can be effectively used to facilitate good faith participation in discovery. Anthony DiSenso, Robert Keeling*, Jeannine Kenney, Hon. Xavier Rodriguez, Karen Sanner
2:15 — 2:45 p.m. Afternoon Break  
2:45 — 3:45 p.m. [Session 4] eDiscovery Implications of the Internet of Things  
  The universe of potentially discoverable ESI has been significantly expanded by the emergence of tens of billions of connected devices, commonly known as the Internet of Things (“IoT”). Devices such as smart watches, fitness trackers, vehicle systems, and smart home products—along with the ESI that they may generate, collect, transmit, and store—pose unique discovery challenges that may not fit neatly into current eDiscovery practices and associated decisional authority. In this session, members of the IoT drafting team will discuss this timely and complex topic and seek input from Sedona membership on the issues. Lilith Bat-Leah, Hon. J. Philip Calabrese, Ross Gotler*, Warren Kruse, Christopher Suarez, Steven Teppler
3:45 — 4:45 p.m. [Session 5] Database Discovery  
 

The volume of data in databases, and the types of data stored in these databases, has, like all other data, increased exponentially.  In addition, advances in broadband and “the Cloud” bring new ways to store and access that data. The Database Principles Brainstorming Group will report on their work evaluating the need to update the 2014 publication The Sedona Database Principles in regards to the paper’s applicability to present-day database discovery, the inclusion of new data types, and the impact of new Civil Rules and recent database case law.

Lilith Bat-Leah, Scott Cleary, Laura Hunt*, Dan Regard, Amy Sellars
4:45 — 5:00 p.m. Recognitions  
5:00 — 7:00 p.m. Reception (guests invited)  
     
  Thursday, October 21, 2021  
7:30 — 8:30 a.m. Breakfast & sign-in  
8:30 — 10:00 a.m. [Session 6] Voices from the Bench: The Judicial Perspective for 2021 and Beyond
 

This session offers a wide variety of judicial perspectives about issues that are top-of-mind for the field including:

  • How might counsel handle ESI preservation and spoliation events within ethical boundaries?
  • What is and isn't working with ESI Protocols?
  • What technologies are increasingly problematic for ESI discovery?
  • How can courts strike a balance between active judicial case management and discovery being a party-driven process?
  • What strategies work for dispute resolution that encourage the parties to reach a cooperative resolution regarding ESI disputes?
  • Special Masters for ESI disputes – what’s working and what’s not?
  • Ethical obligations regarding competence –- what is the standard, and how can courts make their expectations clear?
Hon. Stewart Aaron, Hon. J. Philip Calabrese, Jennifer Coleman*, Hon. Kimberly C. Johnson, Hon. Xavier Rodriguez, Hon. Michelle Sheehan, Hon. Melody Stewart
10:00 — 10:30 a.m. [Session 7] State of Sedona WG1  Martin Tully
10:30 — 10:45 a.m. Morning Break  
10:45 — 11:45 a.m. [Session 8] "Let me guess, Proportionality?"  
  Proportionality has been an integral part of the discovery analysis long before the 2015 amendments moved it to Rule 26(b)(1). Since that time, proportionality has enjoyed a renaissance as a popular basis for both objecting to and demanding discovery. In this session, dialogue leaders will discuss the evolution of parties’ use and courts’ analyses of proportionality. We will also explore the interplay between the six proportionality factors and identify other implicit considerations, including privacy, that have been considered while assessing proportionality. Hon. Stewart Aaron, Rebekah Bailey*, Vince Catanzaro, Tessa Jacob, Henry Kelston
11:45 — 12:45 p.m. [Session 9] Ethics and Technology at the Intersection of Proportionality and Scope of Discovery  
 

Beyond an attorney’s ethical requirement of competence with technology, there are other rules of professional conduct that may be easy to miss as applicable to a litigator’s discovery practice. The rules calling for candor to the court and fairness to the opposing party and counsel may be implicated when an attorney negotiates or uses technology in the realm of proportionality or scope of discovery.  Our dialogue leaders will explore the intersection between these areas, technology, and the applicable ethical rules and discuss how litigators can best navigate those ethical waters.

Kim Duplechain, Claire Hass, Angelica Ornelas, Hon. Melody Stewart, Jeremy Wikler*
12:45 — 1:00 p.m. Closing remarks and wrap-up Martin Tully, Craig Weinlein
1:00 — 2:00 p.m. Grab-and-go lunch (provided)