The Sedona Conference. What is it exactly? Jason Baron came up to me at a DRI event in 2008 and said “you simply must come and hang out with us!” It took me six months and then I ended up spending my entire first Working Group 1 meeting in my hotel room (in Palm Springs, which is hella difficult to get to) on calls with the Court in Delaware and some very crabby opposing counsel. But a couple of meetings in, I started to get my Sedona legs and I was pretty happy. First, because they were talking about things like quality legal process management and I thought “I’ve found my people!” The second reason to be happy about joining Sedona is because it’s a chummy group, although it’s a lot bigger now than it was five years ago.
Sedona is a non-profit legal think tank or “thought leader” as they call themselves. “The mission of TSC is to drive the reasoned and just advancement of law and policy by stimulating ongoing dialogue amongst leaders of the bench and bar to achieve consensus on tipping point issues.” When I joined it was already evolving away from its early years as a small room full of (mostly) dudes mulling over best practices for preserving and producing electronic information. But they were still guiding a rapidly developing field that not a lot of people understood or cared about. The meetings were still cozy, nerdy and cerebral. Veterans welcomed newcomers and remembered them the next year.
What does one DO at Sedona actually? A LOT of talking, that’s what. Then everyone goes home and writes and talks about it some more at the next meeting. After a while Sedona publishes a Commentary on a topic like Quality in the eDiscovery Process or Proportionality. Then judges say things like “Have you read the Sedona Cooperation Proclamation? Go home and read it and come back to me about your ‘failure’ to agree”. (nb: I’m talking specifically about “Working Group 1” of the Sedona Conference, focusing on electronic discovery, as opposed to the Working Groups that focus on antitrust or patent practice).
There’s a rule that what happens at Sedona stays at Sedona so you’re not supposed to quote anyone because a lot of the folks there have to oppose one another, appear in front of one another and otherwise have cover for what they say. One also keeps work in progress close to the vest and avoids association with commercial service providers. But mostly its people who love and understand eDiscovery talking about it detail: “What is the best practice for handling cloud data and how do we want to convey that idea?” “Why was a particular decision about the Stored Communications Act important?” “Should we do a commentary on Ethics?” “How do practitioners really understand the term ‘metadata’ if at all?”
This year I am struck by the degree to which the law writ large is grappling with rapidly moving technology. It’s nothing new that law moves slowly and technology moves quickly. But we are now working on ways in which to analogize smartphones, Googleglass, facial recognition software and wireless enabled household appliances with laws that speak in terms of police officers knocking on doors and asking to look under the bed. And the highest court in the land is made up of people who don’t use email and in some cases don’t drive their own cars (although at least they think a warrant is necessary to search a cell phone). In a group of people who have primarily been concerned about finding and organizing electronically stored information, suddenly we are discussing how to do that with information that some of us aren’t entirely certain should exist at all.
There’s no good answers for all the dilemmas at the intersection of law and technology. But I’m comforted by being around a group of people that care deeply about the answers and are willing to spend time talking about solutions.
