The Sedona Principles & Guidelines

Guidance and Opportunities for Federal Agency Record Keeping Programs

The Sedona Principles & Guidelines

Guidance and Opportunities for Federal Agency Record Keeping Programs

From Sedona to Washington...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?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 ModelThe 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 ModelThe 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-TanksThe 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 & GuidelinesHow Did We Get Here?WG1: The Sedona Principles & GuidelinesHow 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 & DebateA 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 PrinciplesThe 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 reasonablenessConcern for balanceConcern for longevity through scalability

and flexibility; development and refinement over timeConcern for practical solutions of immediate benefit

The Sedona Principles—Select Key ConceptsThe 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 GuidelinesThe 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 ConceptsThe 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: ImpactThe 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 courtsUsed as resources in numerous judicial and legal

education programs and college coursesUsed as resources for businesses, large and smallUsed as resources by vendors Used as resources by governmental agencies

The Sedona Conference® : Going Beyond Debate to Dialogue

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 & ProfessionalIncorporating 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

Applying The Sedona Principles & Guidelines to Federal Agency Record Keeping—Five Points of Light

ResourceGuidanceBenchmarkContactsOpportunity

www.thesedonaconference.org