Takeaways from The Sedona Conference Working Group 6’s Report

On International Principles on Discovery, Disclosure & Data Protection

The Sedona Conference^® (TSC) creates a preeminent opportunity for legal industry thought leaders, i.e. judges, attorneys, academics, and experts, to have a “meeting of the minds” regarding best practices and tips on issues such as antitrust law, complex litigation, and intellectual property rights.  This is accomplished through mini-think tanks referred to as “Working Groups.”  Working Group 6 is charged with focusing on International Electronic Information Management, Discovery, and Disclosure.  Last month, they issued a report containing some best practices that will be summarized herein. 

In 2007, Working Group 6 decided to tackle discrepancies involving cross-border discovery disputes and data privacy, challenges with transferring electronically stored information (ESI), and establishing workarounds because there was not one solution to these problems.  TSC published The Sedona Conference^® Framework for Analysis of Cross-Border Discovery Conflicts (“Framework for Analysis”) shortly thereafter to address these concerns.  To illustrate the complexity of the problems the TSC faced, an example was provided where a company inToronto was conducting business in a café inParis by sending electronic transmissions with attachments from “cloud” based servers inSingapore,Dallas, andAmsterdam to customers inDubai.  Where does one begin to tackle such a jurisdictional nightmare?  In the past, international agreements would dictate such discovery, however, those are extremely outdated. 

Thus, the international legal community had to standardize discovery practices to deal with these issues.  Here are the 6 Principles that Working Group 6 came up with:

The Sedona Conference^® International Principles on Discovery, Disclosure & Data Protection

1. With regard to data that is subject to preservation, disclosure, or discovery, courts and parties should demonstrate due respect to the Data Protection Laws of any foreign sovereign and the interests of any person who is subject to or benefits from such laws.

2. Where full compliance with both Data Protection Laws and preservation, disclosure, and discovery obligations presents a conflict, a party’s conduct should be judged by a court or data protection authority under a standard of good faith and reasonableness.

3. Preservation or discovery of Protected Data should be limited in scope to that which is relevant and necessary to support any party’s claim or defense in order to minimize conflicts of law and impact on the Data Subject.

4. Where a conflict exists between Data Protection Laws and preservation, disclosure, or discovery obligations, a stipulation or court order should be employed to protect Protected Data and minimize the conflict.

5. A Data Controller subject to preservation, disclosure, or discovery obligations should be prepared to demonstrate that data protection obligations have been addressed and that appropriate data protection safeguards have been instituted.

6. Data Controllers should retain Protected Data only as long as necessary to satisfy legal or business needs. While a legal action is pending or remains reasonably anticipated, Data Controllers should preserve relevant information, including relevant Protected Data, with appropriate data safeguards.

Although these principles seem practical and intuitive, it is imperative that the international legal community adopt such to have a baseline of how to address these issues.  Please keep in mind that these only apply to European countries, yet a later version will be released to address additional countries.  Please visit TSC’s website for the entire publication and the detailed comments regarding the above.

Note:  This is the “Public Comment Version” of the International Principles and TSC welcomes suggestions and thoughts at www.thesedonaconference.org or info@sedonaconference.org.

Kevin L. Nichols is the Principal of KLN Consulting Group located in San Francisco, which specializes in Litigation, Diversity and Business Development/Social Media consulting.