On to your points… If I seemed critical of the Sedona’s Conferences efforts on the collaboration front, I apologize for the misperception. I’ve been a Sedona member for 5 years and have in fact written other pieces in support of their numerous efforts, their cutting edge work on E-Discovery Search comes to mind. So, to be crystal clear, my goal in using “orchestrated” and “devotee” was certainly not to “smear” or ”slime” the group or its efforts.

As to my thoughts on the Cooperation Proclamation generally, I am already on record with my opinion: http://www.clearwellsystems.com/e-discovery-blog/2008/11/17/the-sedona-cooperation-proclamation-and-the-case-for-collaboration/... “Given the fundamentally adversarial nature of litigation, the Sedona initiative is either dramatically ambitious or simply tilting at windmills. While generally a skeptic by nature, I think that the bench’s early participation and downstream behavior modification is the linchpin to reforming the litigating masses. Given the long term ‘sales’ cycle involved here, I doubt if we’ll know whether this effort will gain real traction for at least several years.”

What I was trying to note in the post is that there appears to be a consensus rapidly gaining speed that the litigation/e-discovery process is broken, while trying to illustrate how differing constituents have conflicting viewpoints on who’s to blame and how to fix the alleged problem. It was less about stating my belief. But, since you asked,… I think (as a former litigator) that discovery abuses have been going on for a long time and the problems with e-discovery more recently have to do with an unlevel playing field amongst litigants and the bench. Meaning that the newness of the ESI challenges have allowed folks to abuse e-discovery if they’ve been so inclined, thereby taking advantage (ala game theory) of naïve or under-informed participants in the process.

Best,
-Dean

The problem I have with your piece is the implicit criticism in your choice of terms describing efforts to stem that tide of unprofessional behavior. Describing the Sedona Conference as a group which “orchestrated a cooperation proclamation,” and Judge Peck as a “Sedona Conference devotee” fails to advance the debate, other than smearing a group of professionals by vague innuendo. I have attended the Sedona Conference meetings for several years now and while I have a few questions about how assignments are handed out, they are the same questions that apply to almost any organization of any size from your typical junior high school student council through almost any corporation, bar association or Congress.

But sliming the organization that makes a proposal or the individuals that endorse it does nothing to advance the discussion. It’s simply an ad hominem argument that opens you up to questions about your motivations. If you have a problem with the proclamation, say so. Debate it. Deal with it. If you have a problem with how the proclamation came about, have the courage to say what the problem is. If you have another proposal to put on the table, do it.

Let’s do what we can to raise the level of discussion, rather than tear it, and ourselves, down.

Thanks for letting me vent.