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

Brainstorming Groups – Overview

(1)  Lifting Legal Holds

The brainstorming group is tasked with considering creating guidance to practitioners (including in-house and outside counsel), regulators, and judges to address the management of legal holds over the course of litigation to align more closely with the initial objective of establishing legal holds while balancing data minimization principles. 

The preservation of personal information of custodians beyond retention periods or their use for business purposes potentially conflicts with data minimization requirements under the privacy laws in many jurisdictions. However, parties issuing a hold are often reticent to reduce a hold for fear of claims being made against them for spoliation and the potential for judicial sanctions – placing them squarely in conflict with data minimization requirements. The brainstorming group will consider if there are circumstances where it would be appropriate to modify a legal hold and what process should be used, including whether notices should be required, who should be consulted, what needs to be communicated and whether either a conference or judicial approval is necessary, appropriate or desirable. As the cost of maintaining a legal hold is quite significant and litigation holds impact the ability of parties to minimize data retention as required by privacy laws and regulations, this is a matter of substantial interest and importance that surprisingly has little guidance in literature or case law.

(2) Exporting Data from the People's Republic of China

WG6 is forming a new brainstorming group on the Data Security Law and Personal Information Protection Law in the People's Republic of China. The brainstorming group will: (1) consider applicable regulations and enforcement actions impacting cross-border discovery and Information Governance; and (2) provide guidance to assist multinational corporations in complying with these regulations and potentially conflicting legal obligations with respect to cross-border discovery in both civil and regulatory investigations.

Brainstorming Groups - Member Expectations

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 the standards of The Sedona Conference.

Brainstorming Groups - Selection

In order to apply for the brainstorming group(s), 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, please contact our office at [email protected] or +1(602) 258-4910.

In order to be considered for the brainstorming group(s), please provide separate answers to each of the questions below and submit to Michael Pomarico at [email protected] no later than COB EDT on Friday, October 14, 2022. Please be brief when answering the questions – no more than 50 words per answer to a question. When applying, please note which brainstorming group(s) you are applying for. If you are applying for both brainstorming groups, please be sure to answer the fourth question for each brainstorming group.

1. What is your profession and expertise?
2. How many years of experience do you have?
3. What organization do you work for?
4. What qualifications or experiences make you particularly qualified to serve on the drafting team, and why?