The Sedona Conference Working Group 1 Annual Meeting 2020

Hon. Anthony Edwards, Andrew Goldsmith, Del Kolde, Hon. Barbara M.G. Lynn, Michael Oppenheimer, Niloy Ray*

Events of 2020 have brought into sharp focus the importance of electronic evidence in law enforcement, criminal defense, and related civil rights litigation. Electronically stored information (ESI) generated by 911 calls, police body cams, news media coverage, bystanders’ cell phones, surveillance cameras, social media postings, text messages, law enforcement databases, third-party geolocation records, and more provide rich sources of evidence for both prosecutors and defendants. But these new sources of ESI come with new social, technological, and ethical challenges for their preservation, production, and use at trial, including:

• The fundamental duty of technical competence (MRPC 1.2, Comment 8)
• The duty of diligent representation (MRPC 1.3, Comment 1)
• The confidentiality of information (MRPC 1.6, Comments 18 and 19)
• The duty of candor towards the tribunal (MRPC 3.3)
• Respect for the rights of non-parties (MRPC 4.1 through 4.4)
• Proper supervision of associates and legal support personnel (MRCP 5.1 through 5.3)

A panel of experienced criminal justice professionals, including a state prosecutor, federal defense attorney, state trial judge, and federal trial judge, will discuss cases taken from current headlines and provide advice for effective, ethical, and socially responsible advocacy

The explosion of social media applications, the internet of things, and other mobile device applications has created the ability of users to have new technologies and communication tools at their fingertips. People now have the ability to create endless amounts of data, interact with numerous devices from anywhere, and be tracked by their device and its applications. This presents numerous issues in civil and criminal litigation. Attorneys must now ask “What data exists?,” “How do we find it?,” “Is it discoverable?,” and “How do we collect it?” The answer is not always apparent. There is little guidance regarding how courts should treat discovery from third-party applications outside of the social media context. This panel will address how to obtain discovery from third-party applications, the difficulty in obtaining that discovery, and if different rules apply to discovery from third-party applications.

1:00-2:00 p.m.

Andrea D’Ambra*, Ellen Blanchard, Travis Brown, Jeannine Kenney, Hon. Katharine Parker

At the 2019 WG1 Annual Meeting, representatives of different constituencies led the dialogue to identify what is and is not working with the traditional process used for protecting privileged ESI from production. In part 2 of this series, we will explore alternatives to addressing privilege issues in discovery that are aligned with Federal Rule of Civil Procedure 1’s mandate to “secure the just, speedy, and inexpensive determination” of every case. In conjunction with this session, WG1 solicited proposals on how to improve the privilege log process. Our dialogue leaders will evaluate the proposals in advance of the meeting and identify a select number of authors to present their ideas during this session.