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Last week, e-discovery standards setting organization The Sedona Conference published the third edition of its e-discovery guide for judges, titled "The Sedona Conference Cooperation Proclamation: Resources for the Judiciary."

First published in 2008 and last updated in 2014, the publication intends to give judges an easy-to-reference guide for e-discovery case management, based on the organization's Cooperation Proclamation. Intended for federal and state court judges alike, the publication is now available to download on Sedona's website.

The publication was spearheaded by senior editors Ronald Hedges and Kenneth Withers. Hedges is currently senior counsel at Dentons and was previously U.S. Magistrate judge in the District of New Jersey from 1986 to 2007. Withers, meanwhile, is the deputy executive director of The Sedona Conference. A number of other editors and student interns from Georgetown University Law Center also contributed to its development, and a panel of judicial advisers contributed to its development.

Following its publication, LTN caught up with Hedges and Withers via email to talk about the guide's third edition and where they see the current state of e-discovery knowledge among the judiciary. Some parts of the Q&A have been edited for clarity.

Legaltech News: What's new in the Third Edition that judges should take particular note of?

Ronald Hedges: It's been six years since the last edition, so we've updated this edition with references to the amended Federal Rules of Civil Procedure and Federal Rules of Evidence, updated all the case law, and added more examples from state courts. We've also updated the discussion of discovery from social media, artificial intelligence, databases and third-party apps, a lot of which didn't exist in 2014.

LTN: What excites you most about the new edition?

Hedges: Just getting it out is exciting. We've been working on this since November 2017. Every time we'd start updating a section, there would be a new case or a new technology. We finally just had to bite the bullet, so to speak, and get it done.

Kenneth Withers: This is a "one-stop shop" for judges facing issues with ESI throughout a case—from initiation to post-judgment award of costs. It's complementary to the Federal Judicial Center's Managing Discovery of Electronic Information, but applicable to state court actions and designed for judges with more limited experience and resources, who really need our support.

LTN: For those judges not as well-versed in e-discovery matters, where should they begin their education within the Judicial Resources?

Hedges: Begin with the Introduction. It's brief, but provides a useful framework for addressing all the questions that are likely to come up in a typical civil action.

Withers: The Judicial Resources is not designed to be a treatise. It's not for reading cover-to-cover, but for quickly identifying an issue and locating accessible resources to address it. It's like having a virtual law clerk or librarian at your side. After reading the Introduction, read the Table of Contents and zero in on the immediate problem at hand.

LTN: The announcement of the Third Edition notes that "active case management might be the most efficient means to resolve ESI-related disputes, assuming that the court has the means to do so." Why do you advocate for the hands-on approach, and is active case management still rare when handling discovery disputes?

Hedges: It depends on where you are and who the judge is. Many state or specialized courts may not provide for one judge to handle all aspects of the case. You get a different judge at each stage, and the parties have to reinvent the wheel each time they appear before the judge. Familiarity with the case helps the judge resolve disputes. But even without a single judge assigned to the case, a court can use some of the most effective case-management tools, like requiring that the parties file a discovery plan at the outset or informally confer with the court before filing any discovery motions.

Withers: It may seem counterintuitive, but a small investment of time and resources in active management up front will save the court considerable headaches down the road. Active case management is less of a strategy for handling discovery disputes, as your question implies, and more a strategy for avoid discovery disputes in the first place. The court has a more direct role in facilitating the parties' cooperation in discovery, and practitioners will be more cooperative if they know the court is paying close attention.

LTN: The new edition also makes a call for proportionality. Especially nearly five years after the FRCP amendments, how big of an issue does proportionality remain in settling these disputes?

Hedges: Proportionality is key. It is the framework for developing a workable discovery plan and for resolving most discovery disputes. Some state courts have addressed proportionality in their rules, and a handful have followed the 2016 FRCP amendments, but not all, although every judge will consider proportionality in discovery, whether it's required by the rules or simply common sense.

Withers: We've had proportionality expressed in the rules in one way or another since at least 1983, but it is routinely ignored by many parties, who still issue "any and all" discovery requests or respond with blanket objections, with no articulation of their positions based on the factors in the rules. But because discovery disputes seldom reach appellate courts, state or federal, and are almost always left to the sound discretion of a judge considering the unique facts of each case, we need to go back to basics each time and present a framework for proportionality analysis.

LTN: Speaking generally, how would you categorize the current state of judges' e-discovery knowledge?

Hedges: It's all over the map. Generally speaking, state courts have fewer judicial training resources and larger caseloads. Most state judges don't have the same educational opportunities, and elected judges haven't come up through the ranks, let alone run on a platform of e-discovery expertise. On the other hand, a few states are really advanced—North Carolina and New York have commercial divisions, for instance, and Delaware has its Chancery Court, and they handle sophisticated e-discovery issues routinely. We're also seeing a generation of younger judges coming onto the bench with practical, hands-on e-discovery experience from private practice. More are carrying over experience from private practice, both in federal and state courts. So the situation is definitely improving.

Withers: This is why we published the Judicial Resources, and why we're not going to let it just sit on the virtual shelf. Our intention is to use the Judicial Resources as the springboard for judicial education in all courts—state, federal, administrative, tribal. We are already talking to several state judicial education agencies and judicial trainers in federal district and circuit courts about developing training programs centered on the Judicial Resources. So expect to hear more about this in the future.