Canadian Lawyer

tECH support by dera j. neVin Filling a gap What is the Sedona Conference Working Group 7, and why does it matter? T he somewhat confusingly named Sedona Conference may matter more to most litigators than they realize. The Sedona Conference is not actually a conference in Sedona, Ariz., but a U.S.based charitable research and educational institute dedicated to the advancement of law and policy arising largely (though not exclusively) from e-discovery. The Sedona Conference has a Canadian chapter, the Sedona Conference Working Group 7 (also called Sedona Canada). Full disclosure: I have been a member of the Sedona Conference Working Group 7 since 2010. Its mission is to "create forwardlooking principles and best practice recommendations for lawyers, courts, businesses, and others who regularly confront e-discovery issues in Canada." Membership in the Sedona Conference Working Group 7 is available to anyone eligible to join the Sedona Conference, and who pays the annual fees and joins the working group, which convenes periodic meetings by phone and, less frequently, in-person meetings, or conferences. The Sedona Canada Principles is perhaps the best-known work of Working Group 7, and arguably one of the most important e-discovery documents published in Canada. It was released in early 2008 (in both English and French) and is considered the authoritative source of guidance for Canadian practitioners. It is explicitly referenced in the amendments to the Ontario Rules of Civil Procedure and practice directives that went into effect in January  2010. In many ways, the Sedona Canada Principles articulate 18 Jan uary 2014 www.CANADIAN procedural e-discovery law in Ontario. Sedona Canada has also published several documents for public comment, including: The Sedona Canada Commentary on Proportionality in Electronic Disclosure and Discovery, Pub. Cmt. Version (Oct. 2010); The Sedona Canada Commentary on Practical Approaches for Cost Containment, Pub. Cmt. Version (April 2011); and The Sedona Canada Commentary on Enforcing Letters Rogatory, Pub. Cmt. Version (June 2011). All materials published by Working Group 7 are available on CanLII. Notwithstanding these accomplishments, the activities of Sedona Canada and the working group itself have been criticized. Two of these criticisms, that Sedona Canada is irrelevant and insular, are related. I speculate both arise from the inconsistent distribution of Sedona Canada materials to litigators. Consider the criticism that the work of Working Group 7 is irrelevant. Although the Sedona Canada Principles are widely cited, and sometimes individual princiThe Sedona Canada Principles are available at: tinyurl.com/sedonacanada. L a w ye r m a g . c o m ples themselves are quoted (including in decisions and endorsements), the extent to which they are read and understood is not known. Few people can identify all the principles, and many practitioners do not even know how many there are (there are 12). I also question the extent to which the principles, recommendations, and best practices articulated in these documents are actually followed in practice. The irrelevance label may be more formal than substantive. While some litigators may not be able to recite the Sedona Canada Principles chapter and verse, there is anecdotal evidence their publication has had important effects on practice. Most notably, the principle of proportionality runs through all documents prepared by Working Group 7 and proportionality is now a watchword for discovery efforts and decisive in the disposition of many discovery motions. Improving communication and education about the principles and the group's other publications would probably resolve much criticism about irrelevance. The criticism that Sedona Canada is insular may arise from the perception it is an "invitation only" group, or there

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