The Sedona Conference's Sneaky Plan to Make Lawyers Play Nice

The Sedona Conference's Sneaky Plan to Make Lawyers Play Nice

The Sedona Conference's Sneaky Plan to Make Lawyers Play Nice 150 150 Jason Krause

Sedona Offers More Resources to Help Judges Manage eDiscovery
The Sedona Conference is set to introduce an updated and “significant” revision to the The Sedona Conference Cooperation Proclamation: Resources for the Judiciary. In addition to this update, Sedona is launching a special password-protected collaboration area exclusively for judges. Sedona’s Ken Withers tells LTN that within this special judges-only area, they will be able to, “comment on advice and recommendations offered, suggest their own strategies for active and cooperative case management, submit sample orders or other resources to share with other judges, and query other judges online.”
They Have a Cunning Plan
Sedona published the Cooperation Proclamation in 2008 and the first edition of the Resources for the Judiciary was released in August 2011. The simple premise of these documents is that if lawyers drop the gladiatorial style of litigation they learned in law school and work together during the discovery phase, “greater time, and attention (and money) can be spent on litigating the merits of the underlying dispute.”

The crafty part of the Sedona Conference’s plan was to not try very hard to convince lawyers to play along. They wisely understood that no lawyer is going to willingly offer cooperation to opposing counsel without knowing that the other parties are going to follow the same rules. Instead, the Proclamation’s primary audience was judges. As can be seen on the Sedona Conference Cooperation Proclamation page, the document has earned a long list of judicial endorsements and has been cited or incorporated into a large number of reported eDiscovery cases in the past several years.

The Resources is meant to be a practical “toolkit” to train and support judges in techniques of discovery cooperation, collaboration, and transparency. It recommends that judges take a hands-on approach to discovery early in any matter, promote proportionality in preservation demands, limit discovery when necessary, and shift disproportionate costs. It also suggests that judges should not be afraid to sanction parties who create unnecessary costs or delay, or who otherwise frustrate the goals of discovery by gaming the system.
It’s a hardline approach to playing nice. Normally, our system of justice benefits from transparency and openness. But Sedona is clearly hoping that a private, exclusive playground for judges might be a good way to help improve our system of law.