International Electronic Information Management, Discovery, and Disclosure - Working Group 6

As previously announced, David Shonka accepted the position of Chair Emeritus of the WG6 Steering Committee. At the conclusion of the Steering Committee meeting yesterday, February 7, David began serving as Chair Emeritus. As Chair Emeritus, David will continue to attend all Steering Committee meetings and conference calls and participate in all of the business of the Steering Committee. We thank David for his exemplary service as Chair and look forward to his continued service to WG6 as Chair Emeritus.

The Sedona Conference can also report that Leeanne Mancari began her term as Chair of the WG6 Steering Committee effective at the conclusion of yesterday’s Steering Committee meeting. Before becoming Chair, Leeanne’s leadership on the Steering Committee included service as Vice Chair. Leeanne has made significant contributions to the work of WG6 and has demonstrated strong skills in organizing and leading teams doing the important work of WG6. I again thank Leeanne for agreeing to serve as Chair.

We also appreciate the continued dedication and support of the WG6 members who comprise the Steering Committee. They are: Leeanne Mancari (Chair), Franziska Fuchs, Eric Mandel, Nichole Sterling, Dino Wilkinson, Judicial Emeritus James Francis, and Chair Emeriti Amor Esteban, Natascha Gerlach, Taylor Hoffman, and David Shonka.

With my best regards,

Craig Weinlein
Executive Director

(1) Cross-Border Data and Information Governance - Practical Considrations for Global Compliance

WG6 is calling for volunteers to join a new drafting team for an anticipated Sedona WG6 publication: “Cross-Border Data and Information Governance: Practical Considerations for Global Compliance.” The intent of the publication is to provide guidance to corporate stakeholders, the bench, and the bar on myriad decisions and activities an organization must consider when implementing a cross-border information governance program intended to optimize the balance between the competing demands of ongoing retention of information to meet business, legal, and regulatory demands, on the one hand, and on the other hand, the timely disposition of aged or sensitive information—including disposing of personal data to effectuate recognized data protection principles of data minimization and storage limits and fulfill legitimate data subject access requests. The drafting team will have the benefit of a detailed outline prepared by a WG6 brainstorming group which includes eight proposed guidelines along with additional recommendations and considerations.

(2) Operationalizing the Hague Evidence Convention and other Mechanisms for Cross-Border Data Transfers (DEADLINE EXTENDED TO OCTOBER 9, 2023)

WG6 is seeking volunteers for a drafting team that has begun preparing a Commentary that will build off the work done by a brainstorming group that considered The Hague Evidence Convention’s potential to further advance discovery in civil litigation and ways that potential might be advanced.

The Hague is one of the primary means of obtaining cross-border evidence and discovery, even though many judges and legal practitioners have probably never heard of The Hague Evidence Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, and most of those who have heard about it have never read it. Despite its lack of common use, The Hague Evidence Convention remains a critical part of the legal landscape and brave souls have successfully navigated the process to assist in their civil litigation discovery. Critics contend that its processes are slow and cumbersome. The drafting team is considering how that criticism might be met.

The drafting team has been tasked with taking a deep dive not only into The Hague Evidence Convention and the use of Letters Rogatory under Chapter 1 of the Convention and the use of Commissioners and Special Masters under Chapter 2 of the Convention; it is also exploring the use of MOUs and MLATs and the limits of those agreements in dealing with blocking statutes, data protection laws, and other impediments to the unfettered flow of information across borders. The drafting team is evaluating how those devices are, or may be, (mis)used to impair or impede cross-border transfers for litigation.

In addition, the drafting team is considering whether to make a report or recommendation to the Special Commission on Practical Operation of Hague Service, Evidence and Access to Justice Convention on updating the processes for discovery under the Convention.

The ideal volunteer is a WG6 member who has a strong interest in the subject matter and at least a basic level of expertise in discovery or non-US laws – which will grow with participation in the well-balanced group.

• Drafting team members are expected to make the following committments:
  • Total time committment is 12-15 hours per month, including actual drafting, review and drafting team meetings
  • Drafting team members are expected to regularly participate in drafting team meetings - drafting team leaders will take attendance for all meetings, and track meeting participation and contributions during drafting team meetings
  • Drafting team members will be expected to draft or assist in drafting portions of the document and/or perform research as needed - drafting team leaders will track contributions to the drafting and/or research
  • Drafting team members are expected to review all team drafts that are circulated, and comment and edit as necessary
• It is critical that all team members are active, engaged participants in the drafting efforts, in order to produce high-quality work product in a limited timeframe. If the participation requirements outlined above are not something that you can commit to at this time, we recommend that you postpone pursuing a spot on a drafting team until you are able to make these commitments. There will be more WG6 drafting efforts in the near future. Additionally, we will likely have more well-qualified, well-rounded applicants than we have spaces available for this drafting team. As a result, we may have a ranked waiting list. If during the drafting effort, a team member is not able to maintain the commitment required of team members, we will replace that member, if necessary.

In order to apply for the drafting team(s), you must be a member of WG6. If you are interested in applying for the drafting team(s), but are not yet a member of WG6, please become a member by signing up for a Working Group Series (WGS) membership. Once a WGS member, one is eligible to take part in the activities of all Working Groups, including WG6. If you have any questions about how to sign up for a membership or encounter any difficulties while doing so, pease contact our office at info@sedonaconference.org or +1(602) 258-4910.

As a drafting team will typically only have 8-10 members, the Steering Committee will need to be very selective. But all WG6 members, however, will have a chance to review and comment on the draft that the team produces.

Factors in Drafting Team Selection

• Expertise
• Years of Experience
• Participation ion the corresponding brainstorming group
  • Did you join - and contribute - to the preceding brainstorming group?
• Balance
  • As we work to achieve consensus-based documents, it is important that a wide range of perspectives and backgrounds are represented. Accordingly, in selecting drafting team members the Steering Committee will work to ensure these perspectives are fairly represented. Please keep in mind, however, we do not seek differing perspectives so that one may advocate on behalf of a particular perspective or constituency. We seek differing viewpoints, backgrounds and experiences in order to build a consensus-based document that is beneficial to all stakeholders
  • Perspectives we seek to have represented on the drafting teams include, among others:
    • In-house counsel
    • Outside counsel
    • Counsel for consumers
    • Jurists
    • Regulators
    • Technologists
    • Experts
    • Corporate decision-makers
    • Service providers
  • Should you ultimately not be selected for the drafting team, it may simply be the result of too many applicants representing a particular perspective, and not at all based on a lack of qualifications

In order to be considered for the drafting team(s), please complete the questionnaire found here and submit it no later than 9:00 am EDT on Tuesday, October 3, 2023.

(1) Internal Investigations  (DEADLINE EXTENDED TO OCTOBER 9, 2023)

WG6 seeks volunteers to brainstorm on the interplay of international data privacy regulations and internal investigations. The brainstorming group will be expected to review The Sedona Conference International Investigations Principles ("Principles") and consider whether WG6 should draft a supplement to Principles or a stand-alone Commentary that provides practical and current guidance for issues not addressed in Principles, such as the involvement of AI and other current, applicable technologies, as well as changes in laws that may present new concerns.

(2) Preservation in Modern Communications and Collaboration Platforms

The Challenge:

In today's business landscape, modern collaboration platforms, such as Teams, have become essential tools for enterprise communication. Their adoption continues to rise rapidly, with traditional email being supplemented by chat messages and collaborative communication spaces. These platforms facilitate a multitude of interactions, including one-to-one and one-to-many chat conversations, reactions, GIFs, emoticons, and the sharing of various files across standard, private, and shared channels, all of which are digitally recorded.

The Complexity:

When the duty to preserve data arises, organizations face the complex task of determining what to preserve. Preserving every potentially relevant document in existence is often neither reasonable nor proportional. This challenge intensifies when collaboration platforms are used across global enterprises with separate, but linked, corporate entities spanning multiple borders and jurisdictions. The scoping of preservation efforts often touch upon conflicting legal obligations and rights involving data privacy rights.

The Expectations:

The brainstorming group will be expected to explore innovative solutions. This will require expertise in developing guidelines (1) to navigate international tensions that may arise during preservation efforts and (2) that incorporate the principles of reasonableness and proportionality, specifically within collaboration platforms.

Brainstorming group members will be expected to actively participate in regularly scheduled phone conferences to brainstorm on work product ideas. Members will also be expected to participate in the drafting of a detailed outline that allows a subsequent drafting team to prepare work product consistent with standards of The Sedona Conference.

In order to apply for the brainstorming group, you must be a member of WG6. If you are interested in applying for the brainstorming group(s), but are not yet a member of WG6, please become a member by signing up for a Working Group Series (WGS) membership. Once a WGS member, one is eligible to take part in the activities of all Working Groups, including WG6. If you have any questions about how to sign up for a membership or encounter any difficulties while doing so, pease contact our office at info@sedonaconference.org or +1(602) 258-4910.

In order to be considered for the brainstorming group(s), please complete the questionnaire found here and submit it no later than 9:00 am EDT on Tuesday, October 3, 2023.