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The Sedona Conference Cooperation Proclamation

The Sedona Conference's Cooperation Proclamation, issued in July 2008, remains one of the landmark documents of electronic discovery. Here's a basic outline of the 3 page document's content. It's good to have a rough sketch of the Proclamation in your head that you can easily bring up in conversation.

Some particular memorable sentences which evoke the spirt of the proclamation are:

1. "Only when lawyers confuse advocacy with adversarial conduct are these twin duties in conflict."

2. "Over-contentious discovery is a cost that has outstripped any advantage in the face of ESI and the data deluge."

3. "The 2006 amendments to the Federal Rules specifically focused on discovery of 'electronically stored information' and emphasized early communication and cooperation in an effort to streamline information exchange, and avoid costly unproductive dispute."

The proclamation identifies six key cooperation methods, which you can remember with the mnemonic FORM BASED P(eace).

1. Early Identification of the FORMs to be produced.

2. Develop case-long Budgets based on proportionality principles.

3. Joint development of Automated Search and retrieval methodologies to cull relevant information.

4. Exchange information on data sources, including those not being searched, or Early disclosures on the topic of ESI.

5. Use court appointed experts, volunteer mediators or ADR programs to resolve discovery Disuptes.

6. Use ESI discovery Point persons to assist counsel with requests and responses.

The paradigm shift called for by the proclamation, will be a three-part process to be undertaken by The Sedona Conference® Working Group on Electronic Document Retention and Production (WG1)

Use the very simple and obvious mnemonic, ACT.

1. Awareness of the need to cooperate, initiated by the Proclamation itself.

2. Commitment - articulation and understanding of the issues and changes needed for cooperative fact-finding, and include disciplines outside the law.

3. Toolkits - T[ech] GLARE

a. Training programs tailored for each stakeholder.

b. Guides for judges to impose sanctions.

c. Law school programs.

d. Court-annexed ADR.

e. Resources including form agreements, case management orders and discovery protocols.

f. e-Records management for business and individuals.

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