The Sedona Principles & Guidelines Guidance and Opportunities for Federal Agency Record Keeping Programs

From Sedona to Washington... Background on The Sedona Conference The Sedona Principles The Sedona Guidelines Applying Sedona

The Sedona Conference ® Nuts & Bolts: What is it?  A nonprofit 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust, intellectual property rights and complex litigation  Founded in 1997 by current Executive Director Richard G. Braman, Esq.  Started with goal of “transcending” traditional continuing legal education courses and to combine experience with dialogue, outside of the adversarial system, to contribute to the reasoned and just development of law and policy  Developed over time into a group of transitory think-tanks (Working Groups) operating under the umbrella of The Sedona Conference, to develop principles, guidelines and best practices in targeted areas “ripe” for development

The Sedona Conference ® Dialogue Model The Sedona Conference ® is based on the dialogue model of achieving consensus from a wide variety of viewpoints. The dialogue model is very different than the “debate” model of the adversarial system. As one author distinguished debate from dialogue:

The Sedona Conference ® Dialogue Model Debate:Assuming that there is a right answer and that you have it Dialogue:Assuming that many people have pieces of the answer and that together they can craft a solution Debate:Listening to find flaws and make counter arguments Dialogue:Listening to understand, find meaning and agreement Debate:Defending one’s own views against those of others Dialogue:Admitting that other’s thinking can improve on your own Debate:Seeking a conclusion or vote that ratifies your position Dialogue:Discovering new options, not seeking closure * Excerpted from Daniel Yankelovich, The Magic of Dialogue (2001)

The Sedona Conference ® Working Group Series: Evolution of Focused Think-Tanks  First Working Group organized in mid-2002:  Group based on breadth and depth of experience of invitees (participants) and observers  Designed around the dialogue model of achieving consensus  Evolving-continuing, NOT static  Life span based on need, goals and objectives as determined by the Working Group  Currently Four Working Groups Up and Running:  WG1: Electronic Document Retention & Production  WG2: Protective Orders, Confidentiality & Public Access  WG3: The Role of Economics in Antitrust  WG4: The Intersection of the Antitrust & Patent Laws

WG1: The Sedona Principles & Guidelines How Did We Get Here?  FRUSTRATION:  With CLEs  With vendors  With lawyers  With lack of precedent, consistent guidance  OPPORTUNITY:  To set forth concise principles and guidance  To explain propositions and support  To make a positive contribution to the reasoned and just development of the law

A Step Behind: Polemics & Debate  FAULTY PREMISES:  False view of “Individual Plaintiff” vs. “Giant Corp.”  False sense that e-discovery is only about “complex” litigation  Idea that traditional records management principles apply with ease in the digital age  REALITY:  Computer data and documents affect everyone -- including public entities  Public and private entities face substantial management and resources challenges to identify and retain information of value  Courts face management dilemma NOW

The Sedona Principles  Public comment version published in 2003; revised in 2004  14 principles reflecting the law as it is OR ought to be, complete with commentary, examples and support  Concern for reasonableness  Concern for balance  Concern for longevity through scalability and flexibility; development and refinement over time  Concern for practical solutions of immediate benefit

The Sedona Principles—Select Key Concepts  Governmental agencies are subject to same preservation and discovery obligations as other parties  “Discoverable information” is broader than “federal records”  Critical need to understand claims and data at issue  Concept of marginal utility  Need for meaningful disclosures and conferences  Problem of unintended consequences  Need to understand metadata and its potential importance -- including need/benefit to protect YOUR claims or defenses  Understanding privilege and privacy issues in light of proliferation of data

The Sedona Guidelines  Sister project to The Sedona Principles on Electronic Document Production  Addresses management of information in digital age  Public Comment Draft published in September 2004; to be revised in Spring 2005  “Rosetta Stone” link between RIM, IT & legal perspectives  Includes section on “litigation holds”  Has already been cited and discussed in presentations and seminars across the country  Resource for development of various corporate and governmental guidelines

The Sedona Guidelines—Select Key Concepts  Fundamental need for practicality  Critical to understand technology and paradigm shift with distributed and replicated data  Reasonableness and good faith remain keystones  Need to understand statutory guidance and mandates  Implementation is a substantial challenge  Significant issues regarding legacy and orphan data  Communication is critical  Consequences of failure can be severe

The Sedona Principles & Guidelines: Impact  Cited by courts (e.g., Zubulake)  Cited in the national & local rules process (e.g., Federal Rules Civil Discovery Advisory Sub-Committee; 9th Circuit Draft Model Rule)  Cited in numerous articles addressing e-discovery and e-records  Cited in briefs and submissions to courts  Used as resources in numerous judicial and legal education programs and college courses  Used as resources for businesses, large and small  Used as resources by vendors  Used as resources by governmental agencies

The Sedona Conference ® : Going Beyond Debate to Dialogue  The highest and best of professional experience: searching for solutions to complex problems using dialogue to achieve consensus to achieve a public good  Open process; all viewpoints represented and considered -- peer review  Avoid polemics and the adversarial process: divorced from client representation (the “Sedona Rules”)  Work product intended to include:  Important background legal and policy context and roadmap of issues  Presumptive guidance on issues addressed  Flexible, scalable and immediately useful  They are NOT:  Absolute statements of law  Unchangable

Incorporating The Sedona Conference ® into Your Life—Personal & Professional  Give of your time to improve the practice or administration of your profession to benefit society as a whole  Work at a “higher level”: challenge yourself to make whatever area you are in better  Work with others to build consensus and achieve positive change  Take time to retreat and evaluate what you do (and why) on a regular basis  Keep perspective and balance in all areas of your life

Applying The Sedona Principles & Guidelines to Federal Agency Record Keeping—Five Points of Light  Resource  Guidance  Benchmark  Contacts  Opportunity