United States: From Sedona To Georgetown To New York—What’s Fashionable in eDiscovery This Year?

It's that time of year, when bench, bar, vendors, and clients think big eDiscovery thoughts. They go to The Sedona Conference (which is not in Sedona), Georgetown Law's Advanced eDiscovery Institute (which is not at Georgetown Law—but close!), and in a few short months, LegalTech New York (which, bucking the trend, is in New York).

The Sedona Conference All Voices Meeting

The 2014-15 eDiscovery conference season began in New Orleans with The Sedona Conference's first "All Voices" meeting ("All Voices"), which brought all the current Sedona Working Groups together under one roof. In addition to Sedona-specific topics, such as proposed updates and revisions to the Sedona Principles and next steps for each Working Group, The Sedona Conference provided panels on a variety of eDiscovery-specific and ‑related topics.

Oriented across plenary and Working Group-specific sessions, All Voices provided insight into the proposed Federal Rule Amendments and their implications for eDiscovery practices, along with a panel discussion on professional responsibility. There were discussions of Privacy and Data Security Issues in eDiscovery for Law Firms and Third-Party Service Providers and related considerations for Bring Your Own Device, or "BYOD," preservation and discovery; opinions on cross-border corporate investigations; and the application of proportionality in preservation and discovery.

In keeping with recent hot-button industry trends, All Voices also offered up a "Tour" of the recently fashionable Technology-Assisted Review, or "TAR," as well as a related panel on approaches to validate TAR efforts. Finally, there was a lively (and nearly three-hour) session dedicated to the implications of information governance for eDiscovery and related spaces. That session brought together considerations of data privacy, security, and the growth of information in the face of cloud computing, practically unlimited storage, and end-user proclivities, and featured James A. Sherer of BakerHostetler among the panelists.

And in a first for Sedona, an awards night highlighted, among other achievements, the years of service provided by Judge Facciola, who accepted an award for achievement by thanking Richard Braman for his energy, his thoughts, and his legacy. Richard had passed away on June 9, 2014.

Georgetown Law's Advanced eDiscovery Institute

Two weeks later, many of the same practitioners descended on Tysons Corner, Virginia—a stone's throw from Georgetown Law in Washington, D.C.—for Georgetown Law's Advanced eDiscovery Institute ("EDI"). Geared toward providing access to federal judges and the promotion of advanced eDiscovery learning, Georgetown's program also provided a multiple-track approach with plenary and audience-specific sessions. Unsurprisingly, the conference also kicked off with perspectives from the rule makers on the proposed Federal Rule Amendments, following it with panels on the practical impact of those amendments on practitioners.

EDI examined data privacy and security considerations regarding substantive claims and related eDiscovery issues, and presented practitioner thoughts on the evolving nature of defense of process. One Georgetown panel examined privacy, policy, and eDiscovery issues associated with BYOD, and another panel focused on the related "Internet of Things" embedded in products from wearable fitness devices to "smart" refrigerators. EDI also discussed judicial direction associated with TAR and presented additional panels on information governance in a "big data" world as well as privacy issues implicated in social media collection and use.

BakerHostetler partner Karin Scholz Jenson presented a paper and joined, along with retiring eDiscovery luminary the Honorable John Facciola, a panel that addressed the intersections of ethics, technology, and attorney competence in the face of evolving technologies and changing rules. After that panel concluded, Judge Facciola channeled Socrates, citing his high school copy of Plato's "Apology," and provided a stirring coda to a tremendous legal career as a practitioner and then magistrate judge, and his (hopefully) continuing service as a Georgetown Law professor and volunteer.

LegalTech New York

LegalTech New York ("LTNY") is scheduled to kick off on February 3, 2015, and again adopts a multiple-track approach for the conference. As did the All Voices and EDI conferences, LTNY devotes a significant percentage of time to information governance, providing a separate track for those issues on two of the conference's three days. LTNY also provides a separate track for ethical electronic communications; a session on predictive coding (or TAR) evaluation and validation for results; and a focus on the integration of customer relationship management with social and marketing technologies. Here, too, BakerHostetler will be making an appearance, with Karin Jenson, James Sherer, and partner Judy Selby currently scheduled to speak.

The Fashions to Focus On

It's clear the proposed Federal Rule Amendments were of particular interest to practitioners and judges alike; the panels that focused on these and related issues asked some difficult—and quite specific—questions about just how the amendments would work in practice and how to address any related ethical considerations. As TAR practices and technology have matured, the conferences are spending less time on the "what" and more on the "how"—and are now considering how a one-size-fits-all model may not be appropriate for every case and every circumstance. Finally, the related concepts of information governance, data privacy, and data security are creeping into eDiscovery discussions and seem to be pushing practitioners to ask even more detailed questions about their clients'—and their own—practices as they relate to case discovery considerations and the collection, use, and retention of sensitive information.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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