e-Discovery Team Training
Sec. 1 – Mod. BStudy at you own time, your own place, your own pace.
Welcome to Module 1-B .
Introduction to The Sedona Conference
There are several not-for-profit education groups for e-discovery, but the most important today is still The Sedona Conference. Richard Braman, shown right, was the hip founder and leader of The Sedona Conference, until his untimely death in 2014. Most experts agree that this think-tank of lawyers, judges, academics, and vendors that Richard founded is one of the most important and influential group associated with e-discovery today.
In the video below the late, great Richard Braman explained why he started The Sedona Conference and what its all about. (Note be sure your volume is high and includes the left channel.)
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Ever wonder what would happen if Star Trek was in the enterprise of e-discovery? Well, wonder nor more. In this first episode of Star Trek Meets e-Discovery we see what happens when The Sedona Conference takes over Starfleet Command and orders Captain Kirk into the Neutral Zone. This is a teaching lesson on one of the most important initiatives of The Sedona Conference, to explain and promote the doctrine of Cooperation and Rule 1, Federal Rules of Civil Procedure. There will be many more lessons in this course on this all important issue. Everyone in e-discovery needs to learn how to strategically cooperate with opposing counsel to the benefit of their client. Hey, If Captain Kirk can learn to cooperate, anybody can.
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Here is another animation in the Star Trek series where the Captain learns about Principles One and Eleven of the Sedona Principles. It is a follow-up to episode five (found in the Intro Statement) where he was ordered to the Planet Sedona for retraining on Principle Two, the Proportionality Principle. In this Episode Six Kirk is ordered to take a test on the Sedona Principles. Spock tries to helps him to understand the first and eleventh principles. Based on Kirk’s final remarks, Spock advises his Captain to study some more. That is good advice because the Principles are probably the most often cited of all e-discovery publications and are key to understanding e-discovery.
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SUPPLEMENTAL READING AND EXERCISE. Go to the Sedona website at www.TheSedonaConference.org and bookmark it because you will return to it often in this course. A list of the materials available for free download can be found on the publication page for Working Group One on Electronic Document Retention and Production. Look around the website and familiarize yourself with its contents and the many Sedona publications you will find there. In another class we will examine the key document of the Sedona Conference, the collection of best practices embodied in the fourteen Sedona Principles.
Exercises: Find another publication of the Sedona Conference and read it. What were some of the most puzzling things you ran across in the article? Consider whether the subject you picked is an area that you might want to specialize in, or at least learn more about.
Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!
Copyright Ralph Losey 2015
I’ve found the Sedona material to be a valuable source of advice from (primarily) lawyers around how to begin to interpret the FRCP into law-department operations. The working group’s experts are top-notch practitioners who speak from experience. The Sedona material provided me with a first-cut “translation” of the rules into a more actionable level, enabling the reader to project FRCP requirements to specific situations and issues.
The material is somewhat conceptual in nature, as guidelines generally are: for example, the material on preservation and legal holds makes clear the need for metrics, as does the commentary on quality in eDiscovery. The authors’ pragmatic style and frequent citations create an inarguable perspective on the value of metrics. The reader, then, is well-positioned to contemplate appropriate measurements for one’s own litigation scenario. The material stops short of offering specific, detailed metrics and related parameters (like typical target values, techniques for assessing variance, and other critical elements of high-performing business processes), which I believe is by design – Sedona prompts the reader to ‘digest’ the its input prior to (and in preparation for) creating or refining operational mechanisms for managing the legal business processes involved in eDiscovery.
This makes the Sedona material a valuable lead-in (and perfect complement) to other “best-practice” models like the EDRM (covered in the next course module), which address eDiscovery from a different (and minimally redundant) perspective. (The next-lower level of abstraction in the EDRM Metrics modules, in fact, provides much of the operational guidance for the example I outlined above).
The one element that left me wanting in the Sedona material is a more in-depth discussion of the huge value of business-process design skills, to teams addressing eDiscovery. While this is perhaps beyond the scope of Sedona’s mission as currently outlined, an opportunity exists to level-set teams (especially lawyers) on the specialized methodology and toolset needed to “design in” efficiencies, risk assessment and process-control mechanisms which characterize continually-improving business processes. My hope is that the Sedona strategic thinkers have (or will) consider the incremental value of this topic, in helping teams of practitioners define and implement repeatable, predictable and demonstrable eDiscovery processes. (For the pre-professional law students reading this, I’ll suggest a review of your institution’s offerings on this topic – whether for your own enrollment or to connect with others whose own post-graduate aspirations include a focus on business-process expertise).
I think Joe has it just right; between EDRM and Sedona we have two great resources for the “what” and the “how” of e-discovery. What’s missing is material that should be introduced into all law school curriculums; process/project/practice management. There are already great sources for these topics (the Project Management Body of Knowledge or PMBOK for instance along with lots of material on Business Process Management or BPM). The e-discovery era has highlighted the need to understand not only technology but also how to create an effective, defensible process that effectively supports the activities of the practice and the needs of clients. I think it’s unlikely that all attorneys will become e-discovery experts (in fact, they shouldn’t have to as this will become a recognized practice area if it isn’t already) but all will need to know the basics of the activities that e-discovery has become a nexus for; how to deal with technology/technologists, how to integrate a project timeline with the court schedule, and how to create and manage well functioning processes.
I second Joe’s comment above. Sedona site was the first website that I learned about E-discovery. Glossary of E-discovery terminology is extremely helpful in understanding the basics of what E-discovery entails. Further guidance on reasonable accessible data and preservation are really helpful in guiding attorneys in the right path when it comes to E-discovery.
The only thing I have difficulty in getting any consensus on production of proprietary software databases Eg. HR databases and accounting databases. I could not find any vendor who could take a database and extract the needed data from a database. Often times, requesting parts wants everything and, instead of spending attorneys fees in defending such request, the probable solution tend to be producing the whole database. What choice do we have in those situations in general?
Databases continue to be one of the most arduous sources to work with (but I believe social media will top that before long). Extracting meaningful (let alone related and/or relevant) information from a database requires a few key things; knowledge of the structure of the database, an application (or view) that allows you to see and extract the needed information in context, and the expert that understands both these issues and the art of using/managing the database itself. The only method I have seen that seems to provide a consistently sound approach that everyone can live with is to jointly view the database contents using the application normally utilized by the business in using the data and identify what reports (or extractions) meet the needs of the parties. This goes beyond agreeing on key words and can be a significant effort depending on the matter. However, the alternative is to provide the entire database (or a portion) and the receiving side has to dig through it with a tool or tools and no one knows where that will end up. My best advice is if you have identified that a database is relevant in a matter that a discussion on the information that it contains and a sampling of the expected data output using the business application be used to decide on what to extract and produce. Of course you will likely be asked for additional information as this gets reviewed but that is more a function of complexity than anything else. As with most things e-discovery I always suggest that the attorneys and key information technology staff talk about this together to ensure everyone gets on the same page of understanding before any access/extraction is performed.
Thanks Pete. Often times, the other side is not willing to talk at all and they will request the native file and they think that native means, you get every meta data field information whether relevant or not. Then, we end up producing on native format, and the complaint would be – I need those bates marked. So, how do you bates mark native software material. I wish sometimes that before they put forth that boilerplate request, they think twice and see how best can I benefit from this request and not waste everyone’s time. If you know of any case that involves production of such proprietary software, I would appreciate the citation to the case!! Thanks
My topic is not directly related to the other discussions on this page. I am puzzled by TSC’s discussion about Rule 45 subpoenas with respect to “significant expense” vs. “undue burden and cost” as found on page 4 of
Nonparty Production and Rule 45 Subpoenas from TSC WG1 Paper April 2008. Not an attorney or a law student, so this may be a distinction that is elementary to the rest of the audience. In my role as a paralegal for a nonprofit corporation that is very sensitive to cost, this topic caught my eye. I’ve been involved in several requests for production and, so far, we have been the nonparty. I’d love to learn from you and appreciate your time in posting.
If you are not a party to litigation, then the court will give you greater protection from expense of production.