Shook Partner Patrick Oot has authored an October 2, 2015, Legeltech® News article urging stakeholders and practitioners to participate in standard setting organizations (SSOs), which often define the standards of care applied by courts in litigation. Citing guidelines developed by groups such as The Sedona Conference® and International Organization for Standardization (ISO), the article notes that many of these secondary materials "make their way into actual precedent cited by other courts" despite a lack of broad-based participation in their development.
"Without broad participation by the legal community, an ISO standard may develop that imposes significant risk and liability on the practitioners and organizations—particularly large data holders," writes Oot. "It is becoming ever-apparent how persuasive SSOs' best practices, guidelines and principles have become within the United States legal system, often guiding courts in their interpretation of the Federal Rules of Civil Procedure (FRCP)."
In particular, Oot notes that FRCP amendments effective December 1, 2015, present "a tremendous opportunity" for counsel to engage with the standard-setting process: "While courts of various levels around the United States continue to struggle in defining 'reasonableness,' 'proportionality,' etc., lawyers, clients, students, academics and lawmakers should monitor the development of secondary sources… [W]ithout participation by the broader community, opportunity might turn into risk."