Sedona Comes to Cambridge

The Sedona Conference is an American group which has its aim to allow leading jurists, lawyers, experts, academics and others to come together, in conferences and mini-think tanks (Working Groups), and to engage in dialogue in an effort to move the law forward in a reasoned and just way. It has adopted a pioneering role in establishing best practice principles for dealing with electronic disclosure of documents in complex litigation,[1] and these principles influenced the thinking of the Working Party chaired by Mr Justice Cresswell which made recommendations as to disclosure of electronic documents under the Civil Procedure Rules.[2]

The Sedona Conference has now turned its attention to issues relating to Electronic Information Management, Disclosure and Discovery in an international context, and has formed a Working Group to investigate the issues which may arise. Over the weekend of 16-17 July 2005 this Working Group held its inaugural conference at Clare College, Cambridge. The Conference was attended by approximately 50 delegates, from the United States, Canada, England, Ireland, Australia, Germany, Belgium, Switzerland and Japan. They included Judge Shira Scheindlin, the US judge who decided the important US case of Zubulake v UBS Warburg.[3] Those who attended from England included Lord Justice Neuberger (Judge in change of modernisation of the court system in England and Wales), Dominic Hartley (Head of Technology at the Department of Constitutional Affairs), Richard Susskind (IT Adviser to the Lord Chief Justice) and Janet Lambert (Barlow Lyde & Gilbert) who was a member of the Cresswell Working Party.

The conference took the form of a series of discussions led by panels which had prepared short presentations to get the discussions started. The following panel discussions took place:

• the diverse principles and policies that underlie disclosure and discovery in different countries.
• preservation and production in the litigation context under US law
• existing UK efforts to develop best practices on e-disclosure matters (Commercial Court Working Party report; Commercial Litigators Forum report,[4] draft Practice direction on the use of IT in Civil litigation[5])
• what has been done so far in the US to address problems concerning e-discovery: the Sedona principles, the Sedona guidelines, amendments to Federal Rules
• identifying major differences between US and international law concerning preservation/production of electronic information
• how e-data is being preserved, retrieved, and disclosed in the litigation context related to privacy protections and technology variations in different jurisdictions
• trends in international laws on privacy; differences in government “watchdog” behaviour, employee-employer rights, and the increasing global tendency to protect consumer data
• practical problems presented by disparate retention obligations and privacy protections in a multi-jurisdictional context
• the potential for international guidelines and best practices on e-disclosure and e-retention: how might such guidelines best be developed?

The topics covered were not limited to issues directly arising in litigation, but extended to how companies operating in a global context should set up and manage their information systems in a manner which strikes the most appropriate balance between a number of competing considerations:

• the need to preserve important documents, such as documents which record transactions or demonstrate that projects have been carried out competently, and documents which are required to be retained to meet regulatory requirements in relevant jurisdictions
• the desirability of deleting ephemeral communications which are of no (or limited) record-keeping significance, such as instant messages
• the need to preserve relevant documents relating to a matter in which litigation is anticipated
• the need to comply with data protection principles in different jurisdictions, and which may require personal data to be deleted when it is no longer required.

In relation to disclosure of electronic documents in litigation, it soon became apparent to the English delegates that there is an important difference between many of the most complex cases in the United States courts and the heaviest cases in the English courts. The first clue was the way that panelists introduced themselves by stating whether they were claimants’ lawyers or defence lawyers. Whereas a large proportion of the heaviest English cases involve businesses on each side whose quantities of documents to be disclosed are not that much different, many of the heaviest US cases involve what was described as “asymmetric” litigation. In a class action suit, the claimants are typically represented by claimants’ lawyers, and have relatively few documents to be disclosed to the defence, whereas the defendants are typically represented by defence lawyers and have very large numbers of documents which will have to be disclosed, and they often need to obtain those documents not just from their offices in the United States but also from their offices in other countries.

In England the parties are often able to find their way to an agreement on managing the process of disclosure in a cost-effective and proportionate manner which is best suited to the circumstances of the particular case – the parties usually have a common interest in achieving this. But it is easy to see that this may be harder to achieve in a case in which each side does not have roughly equivalent obligations in relation to disclosure of documents. Best practice in the United States is now for the parties’ representatives in heavy cases to “meet and confer” at an early stage to agree how to deal with disclosure in the most appropriate manner in each case. The same principle is reflected in the new paragraph E3.1A of the Commercial Court Guide.[6]

We were introduced to a number of expressions which may not be familiar to English lawyers:

• the “litigation hold” is the instruction to ensure that all relevant documents are preserved, from the time when litigation is first anticipated
• “quick peek”: where the parties agree that a party may have a look at the other party’s documents prior to the privilege review, in order to prepare a document request, without there being any waiver of privilege (the danger here is that although the party making the document request may not be able to rely on waiver of privilege, a third party may be able to do so)
• “claw-back”: where the parties agree that if any privileged documents are disclosed, whether or not this appears to be inadvertent, they should be returned unread (possible risks with third parties again).[7]

The final panel session considered how the activities of the Working Group could usefully be carried forward. This included a discussion of the benefits of familiarisation courses for judges who may need to decide issues arising in relation to electronic disclosure.

The next steps for the Working Group are to assess whether it would be helpful to produce resource or guidance documents in relation to international electronic information management, discovery and disclosure, and, if so, setting about creating such documents and circulating them for public review and commentary.

Clive Freedman FBCS, FCIArb is a barrister practising in 3 Verulam Buildings, Gray’s Inn.