The Sedona ® Conference Journal Volume 15 v Fall 2014 A RTICLES In Memoriam: Richard G. Braman . Craig W. Weinlein Responding to the Government’s Civil Investigations . David C . Shonka What’s the Problem with Google? . Daniel R . Shulman Technology-Assisted Review: The Judicial Pioneers . Paul E . Burns & Mindy M . Morton The Sedona Conference Commentary on Patent Damages & Remedies . The Sedona Conference The Sedona Conference Commentary on Information Governance . The Sedona Conference The Sedona Conference Database Principles Addressing the Preservation & Production of Databases & Database Information in Civil Litigation . The Sedona Conference The Sedona Conference Best Practices Commentary on the Use of Search & Information Retrieval Methods in E-Discovery . The Sedona Conference The Sedona Conference Commentary on Achieving Quality in the E-Discovery Process . The Sedona Conference The Sedona Conference Glossary: E-Discovery & Digital Information Management (Fourth Edition) . The Sedona Conference ANTITRUST LAW, COMPLEX LITIGATION AND INTELLECTUAL PROPERTY RIGHTS THE SEDONA CONFERENCE JOURNAL® V OLUME 1 5 n F ALL 2 0 1 4 The Sedona Conference Journal® (ISSN 1530-4981) is published on an annual basis, containing selections from the preceding year’s Conferences and Working Group efforts. The Journal is available on a complementary basis to courthouses and public law libraries and by subscription to others ($95; $45 for Conference participants and Working Group members). Send us an email ([email protected]) or call (1-602-258-4910) to order or for further information. Check our website for further information about our Conferences, Working Groups, and publications: www.thesedonaconference.org. Comments (strongly encouraged) and requests to reproduce all or portions of this issue should be directed to: The Sedona Conference, 5150 North 16th Street, Suite A-215, Phoenix, AZ 85016 or call 1-602-258-4910; fax 602-258-2499; email [email protected]. The Sedona Conference Journal® designed by MargoBDesign.com – [email protected] Cite items in this volume to “15 Sedona Conf. J. _____ (2014).” Copyright 2014, The Sedona Conference. All Rights Reserved. PUBLISHER'S NOTE Welcome to Volume 15 of The Sedona Conference Journal (ISSN 1530-4981), an annual collection of articles originally presented at our Conferences, and commentaries prepared by our Working Groups, over the past year. The Sedona Conference was founded in 1997 to provide a forum for advanced dialogue by the nation’s leading attorneys, academics and jurists of cutting-edge issues of law and policy in the areas of antitrust, intellectual property rights, and complex litigation. We host Regular Season Conferences, international programmes, TSCI conferences and several Working Group meetings each year, providing unique and rewarding opportunities to seriously explore the boundaries of various areas of the law with those who are creating them. This volume of the Journal contains two articles from The Sedona Conference Institute (TSCI) Program (March 2014), one article from our regular season conference on antitrust law and litigation (July 2014) and six Working Group commentaries that have been published since the printing of The Sedona Conference Journal, Volume 14, in 2013. We hope that you will find that the papers in this Journal reflect the same mix of theory and experience found at our Conferences and Working Group Meetings, including the creativity and constructive irreverence required to challenge traditional thinking. The views expressed herein are those of the authors, and we encourage the submission of counterpoint pieces. Submissions can be sent electronically to [email protected], or by mail to The Sedona Conference, 5150 North 16th Street, Suite A-215, Phoenix, AZ 85016, USA. If you are interested in participating in one of our Regular Season Conferences, our TSCI conferences or international programmes, or in joining our Working Group Series, please visit our website for further information (www.thesedonaconference.org). Craig Weinlein Executive Director The Sedona Conference November 2014 The Sedona Conference gratefully acknowledges the substantial contributions of its Conference faculties, Working Group Series Sustaining and Annual Sponsors, participants, members and observers, and our Advisory Board members, whose volunteer efforts and contributions make The Sedona Conference a “thought-provoking and inspiring” experience providing content of immediate benefit to the Bench and Bar. i IN MEMORIAM Richard G. Braman Richard Braman was the visionary founder and Executive Director Emeritus of The Sedona Conference. His passing on June 9, 2014 was a loss to The Sedona Conference and to the legal profession. Richard was a pathfinder and an agent of change. When he saw a need he found a solution. He found ways to foster cooperation and bridge gaps, and his natural leadership attracted others to join him in crafting solutions and finding a better way. Richard was active as a leader and agent of change as early as high school, where he graduated at the top of his class. He was president of the thespians, the debate team, vice president of the student council, and president of the student federation. Richard created the federation as an alternative to a student council that was not responsive to the needs of students. He saw a need and, with the help of others, crafted a solution. Richard attended the University of Minnesota, completed his course work in three years, and graduated summa cum laude in 1975. He then attended the University of Minnesota Law School and graduated magna cum laude. His professional career began in the antitrust group of the law firm of Brobeck, Phleger & Harrison in San Francisco. A year later, he realized that a large California law firm was not a good fit for his independence. He moved back to Minnesota and joined the boutique plaintiffs’ class action firm of Opperman & Paquin. In 1984, Richard took the first of two sabbaticals and opened Gabriel’s, a Minnesota jazz club that quickly acquired national renown. He then resumed his law career and joined the law firm of Gray, Plant, Mooty, Mooty & Bennett (currently known as Gray Plant Mooty) in its plaintiffs’ antitrust practice. He would co-chair the Antitrust Practice Group before taking his second sabbatical to create The Sedona Conference. Richard founded The Sedona Conference in December 1997 because he was dissatisfied with traditional continuing legal education (CLE) programs. He knew there was a better way than “talking heads” delivering lectures to passive unengaged attendees who were collecting CLE credits while solving crossword puzzles or reading the paper. Richard wanted to replicate the college seminar, with a small group of people interested in the advanced subject matter and engaging in real dialogue on an issue. The result was The Sedona Conference regular season conferences on antitrust law, complex litigation, and intellectual property rights. From the beginning, these regular season conferences have been advanced level, dialogue-based mini sabbaticals with limited attendance for the nation’s leading jurists, lawyers, and experts to examine cutting edge issues of law and policy. To encourage the dialogue leaders at the regular season conferences to create superior written materials to accompany and support the sessions at the conferences, Richard created The Sedona Conference Journal to publish the best papers from The Sedona Conference regular season conferences. At the regular season conferences, leading practitioners were discussing possible solutions to cutting edge issues and wanted to follow-up by drafting principles, guidelines, or best practices to move the law forward. This naturally led to the formation of The Sedona Conference Working Groups. Working Group 1 produced The Sedona Principles: Best Practices Recommendations & Principles Addressing Electronic Document Production (March 2003 version), which had an ii immediate and substantial impact. Within a few weeks they were cited by the Discovery Subcommittee of the Civil Rules Advisory Committee of the Judicial Conference of the United States. Less than a month later they were cited by Judge Shira Scheindlin of the United States District Court for the Southern District of New York in Zubulake v. UBS Warburg, the groundbreaking case on eDiscovery. Because of Richard’s energy and passion for the mission of The Sedona Conference, the organization has grown greatly in the past fifteen years. The Sedona Conference now has eleven Working Groups addressing issues in eDiscovery, antitrust, complex litigation, intellectual property rights, cyber security, and international electronic information management. Collectively, the Working Groups have published a total of 47 nonpartisan consensus commentaries, principles, guidelines, or best practices designed to move the law forward in a reasoned and just way. The newest Working Group is identifying and commenting on trends in data security and privacy law, in an effort to help organizations prepare for and respond to data breaches, and to assist attorneys and judicial officers in resolving questions of legal liability and damages. As a result of Richard’s work in the field of eDiscovery, in 2013 he was selected as one of the top six eDiscovery pioneers by Law Technology News and The American Lawyer. He was also named one of the 50 most innovative people in Big Law in the past 50 years by The American Lawyer. Richard also is remembered for his revolutionary