March 29, 2019

"Law & Order" Discovery Victims Unit

This is a 2-hour CLE program focused on electronic discovery, spoliation and sanctions issues, presented in a Law & Order'esque story format.  Panelists, including eight judges, lawyers representing each side of the case, a fact witness, and competing technical/forensic experts will act out the storyline, pausing at designated intervals to drop character and inject commentary.  The story will be based on a hypothetical federal lawsuit involving the alleged theft of trade secrets by former employees of a political consulting firm, and will track the progression of the lawsuit in the trial court from the initial Rule 26(f) conference, to a Rule 16 scheduling hearing before a judge, a hearing on an early motion to compel and for sanctions relating to the withholding of ESI, another hearing on a related motion for sanctions for deposition misconduct, an evidentiary hearing on a pretrial motion for Rule 37(e)(2) sanctions for failure to preserve ESI, and ultimately to a mock sidebar at trial because a witness or attorney mentioned an issue or evidence precluded by the Court's earlier sanctions rulings.  The first hour will focus on graduated levels of conduct warranting sanctions from the Rule 26(f) conference through the discovery motions practice, seeking to educate the audience as to what conduct is sanctionable versus conduct that may be obnoxious but falls short of being sanctionable.  The second hour will focus on how sanctionable discovery conduct concerning ESI is addressed under the current version of Fed. R. Civ. P. 37(e)(1)-(2) in the pretrial sanctions hearing and during the mock sidebar at trial.  The program will be structured to allow reactions to the scripted presentations and the presiding judges' rulings from the bench.

Throughout this interactive two-hour program, panelists will address the fact that the sheer volume and cost required to obtain and process ESI during discovery can make it difficult for counsel to know whether an adversary's responsive ESI has been withheld, altered or destroyed. The intentional destruction of ESI has become increasingly common and more difficult to detect as technology has become more sophisticated. Powerful wiping programs and other practices can obliterate documents and metadata. Yet an analysis of whether such programs and practices were deployed is rarely part of trial counsel's initial assessment. This program will provide practical tips to assist counsel in understanding when to be on heightened alert for the potential of ESI spoliation, how to identify red flags, and how to efficiently detect whether ESI spoliation has occurred.  Panelists will also provide a useful framework for conducting a base analysis and determining when additional analysis is worthwhile. In addition, the presentation will feature a discussion of available legal strategies, options, and remedies in response to an adversary's ESI spoliation. Importantly, program will address the professional obligations that counsel for the requesting party and for the producing party must consider throughout the litigation process.  These ethical considerations cover a broad range of topics, including competency, duties to preserve and collect evidence, candor, cooperation, confidentiality, fairness, professional integrity, and more.

Law & Order fans will note reference to characters who have played a role in the show over the years (including some famous cameo appearances), and this interactive program will aim to ensure that those who attend do not become “Discovery Victims.”

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