Pretrial Practice & Discovery


Learn while you’re on the go. Access the Pretrial Practice & Discovery Committee’s recordings on this archive page.

Sound Advice

A Quick Guide to the 10 Phases of E-Discovery
In this Sound Advice, Laura Readinger provides a quick guide to the 10 Phases of e-discovery. (12:24 min.)

Networking That Works
Networking can be an important business development tool for all attorneys, but especially litigators. It is important for lawyers to strategically choose where, how and with whom to network. Marketing consultant Carol Schiro Greenwald and IP litigator Michael Steger discuss these issues in this Sound Advice. (14:49 min.)

Practical Tips for Virtual Practice
In 2020 we saw a rise in the use of virtual technology, including Zoom, for depositions and hearings. In this podcast, two litigators, Ashley Heilprin and James Gilbert, discuss how to avoid snafus and have a seamless virtual presentation of evidence and testimony. (11:55 min.)

Top Tips for Taking and Defending Remote Depositions
Considering taking a remote deposition while working from home? Learn from Mason Farmani, CEO of Barkley Court Reporters, about the various virtual options, how to prepare, and avoiding technical snafus! (22:25 min.)

8 Tips for Engaging in Virtual Mediation
In this program, Tanya Greene provides eight practical tips for attorneys who are interested in participating in a virtual mediation. (8:12 min.)

Overcoming Hearsay Objections to Electronic Evidence
Ashley Heilprin provides quick tips for planning ahead to introduce evidence and overcoming objections to hearsay with respect to electronic evidence. (7:39 min.)

Obtaining or Resisting Injunctive Relief
In litigation, there are very few mechanisms that are as powerful and game-changing as the remedy offered by preliminary injunctive relief. Because preliminarily-granted injunctive relief is an extraordinary remedy, both in terms of its timing and effectiveness, it is absolutely essential to understand the best strategy to pursue in obtaining that relief and, if you represent the party opposing that outcome—recognizing the ways in which you can persuade a judge to deny that remedy when your client is given an opportunity to be heard. In this Sound Advice, Dana Lumsden of the Charlotte office of Bradley Arant Boult Cummings LLP provides advice on obtaining or resisting injunctive relief. (16:21 min.)

Constructing a Privilege Log: What You Need to Know
Litigation attorneys often view privilege logs as an afterthought during discovery. However, an inaccurate or incomplete log (or altogether failing to provide a privilege log) can have drastic consequences for both the attorney, the client, and their relationship. In this Sound Advice, Joshua Sindel provides simple tips to prevent this from happening to you. (8:40 min.)

Demystifying Doc Review, E-Discovery, and Data
Jeffrey Licitra and Ernest Quarles begin by comparing e-discovery software to paper review practices to better understand how reviewer coding creates data. They describe one example of how that user-created data can be copied to Excel to generate a meaningful insight into an investigation. (10:24min.)

5 General Tips for Writing to the Court from the Perspective of a Federal Law Clerk
Effective legal briefs often must persuade not only the judge, but the judge's law clerk. Timothy Hughes provides five valuable legal writing tips from the perspective of a former federal clerk.  (5:45 min.)

Avoiding Waiver of Privilege under FRE 502
Federal Rule of Evidence 502(d) provides for an effective way to claw back documents and avoid waiver of attorney-client privilege. This Sound Advice includes tips on drafting Rule 502(d) orders and avoiding the murky waters of Rule 502(b) considerations on waiver of privilege. (12:00 min.)

Trends in Discovery for International Disputes
International disputes present unique discovery challenges. Neil Bloomfield discusses three current challenges (i) GDPR restrictions on discovery, (ii) U.S.-based discovery in aid of foreign proceedings, and (iii) the preservation of ephemeral communications. (12:41 min.)

Strategies to Use in Developing Case Theory & Construction
In litigation, the theory of the case and how you construct your presentation of the case may mean the difference between winning and losing. Gwendolyn Lewis presents tips for every litigator's toolbox as you develop your case theory and construction. (7:36 min.)

10 Tips for Improving Efficiency in Large E-Discovery
E-Discovery can be time consuming and costly in document-heavy matters, however, it doesn't have to be. Eric Wieder and Ashley Heilprin present 10 tips to ensure an efficient e-discovery process that will help you to identify the relevant ESI in a cost-effective and efficient manner. (13:04 min.)

Preservation Issues for Company Prior to Receipt of Complaint
Discussion of various preservation issues for a company to consider once it becomes aware of a potential legal dispute or a government investigation, and prior to receipt of formal complaint. (11:33 min.)

Creating Your Own Path
Linda Klein gives advice for young women lawyers about creating their path to leadership roles in their firms or in outside organizations. (12:31 min.)

Employer Ownership of Social Media Accounts: Does Your Client Need a Policy?
Employers are increasingly using social media for their business. However, disputes may arise over the ownership of social media accounts when employees leave their companies. Ethan Tidmore discusses how social media policies may be a valuable tool to prevent those disputes. (6:46 min.)

An Overview of Early Case Assessment
Attorneys are under increasing pressure to resolve cases as quickly and as cheaply as possible. Implementing a robust early case assessment program can help attorneys achieve that goal. Kevin Broughel provides a helpful overview of the key elements of a successful ECA protocol. (8:17 min.)

Why Smart People Give Stupid Testimony
Ken Berman hits the highlights of his TED-style talk delivered at the Section Annual Conference in San Francisco, focusing on why lawyers should prepare witnesses to give positive support for key case themes, rather than the classic defensive or minimalist approaches to testimony. (15:18 min.)

Top Tips for Obtaining Jobs in the Public Sector
Professional career advice for law students and young lawyers interested in the public sector. Recorded at the Equal Justice Works Career Fair and Conference. (7:20 min.)

Large Electronic Data Sets
Mary Kate Kamka discusses unique challenges created by large electronic data sets and some of the best strategies to handle them. (8:05 min.)

How to Be Successful in Securities Mediations
Regina Martorana discusses some tips to use during mediations. In addition she reviews how FINRA can help your clients. (13:25 min.)

Technology-Assisted Review—The TAR Evolution
Technology-assisted review (TAR) has been fairly slow to develop because of a combination of a lack of understanding and general lack of trust. Zviad Guruli outlines the history of TAR and ways it can help you and your clients. (8:12 min.)

Conducting Cross-Border Discovery
E-discovery and data-management expert Dana Post discusses why U.S. laws make this complicated and offers best practices to still be successful for your client. (9:02 min.)

Structured Data Discovery
Bobby Malhotra explains that structured databases are an underused source of potentially valuable information and how to best use these tools. (14:32 min.)

Cost-Containment and Risk-Management Strategies for E-Discovery
If you are not careful, e-discovery can cost more than you anticipate. Giyong Song gives strategies to keep costs down with the use of early analytics and other strategies. (13:59 min.)

Tips on Preparing for Your First Big Hearing
Every young lawyer wants to impress their coworkers on their first major hearing. Listen to Nathan Hatcher’s practiced advice on basic and not-so-basic preparation to ensure that it goes as you hope. (11:21 min.)

Inadvertent Disclosure of Documents
Educator and litigator Michael Downey explains how the ethical obligations for inadvertent disclosure of documents have evolved over the years. (5:09 min.)

Avoiding the Pitfalls of Alternative Fee Arrangements
As litigation costs continue to rise, clients and attorneys are reaching alternative fee arrangements. Litigator Betsy Collins outlines some of the best practices for these types of arrangements and what should be avoided. (15:07 min.)

Discovery Cooperation—A View from the Bench - PART II
Listen as Littler Mendelson e-discovery counsel Niloy Ray interviews former federal magistrate Nan Nolan about the ever-changing world of e-discovery and how cooperation between attorneys is more important than ever. (10:29min.)

Discovery Cooperation—A View from the Bench
Listen as Littler Mendelson e-discovery counsel Niloy Ray interviews former federal magistrate Nan Nolan about the ever-changing world of e-discovery and how cooperation between attorneys is more important than ever. (14:02 min.)

Timing Discovery and Motion Practice to Make Mediation Work for Your Client
It is said that timing is everything.  Matthew Bakota outlines how that is especially true as you prepare a mediation. (7:00 min.)

Inadvertent Production of Documents
Unfortunately for clients, accidental production of documents does occur. John Barkett discusses what should happen when privileged or protected documents mistakenly get shared with opposing counsel. (6:32 min.)

Civil Rules Advisory Committee Proposed Changes in Discovery
John Barkett discusses the possible changes in the scope of discovery presented to the Rules Committee. (4:55 min.)

Best Practices for Pretrial Discovery and the Use of Experts
Joe Hanna gives tips on conducting pretrial discovery and using experts to help give you the advantage. (9:09 min.)

Ten Tips for Dealing with Discovery Bullies
All lawyers have encountered the dreaded discovery bully. Listen as two of Armstrong Teasdale's finest lawyers give advice on dealing with this frustrating situation. (8:39 min.)

How Rule 54(d) Impacts the Costs Associated with E-Discovery
As we know, Rule 54D allows certain costs to be taxed to the losing party. Listen as John Barkett explains how the rule applies to costs associated with e-discovery. (9:57 min.)

What Are Generic Top-Level Domain Names?
Listen as Joan Archer provides answers on the imporatance of generic top-level domain names, as well as important information on a looming deadline that can have impacts on your clients’ businesses. (9:43 min.)

Winning Discovery Disputes
Winning discovery disputes is not that difficult – it’s all in the drafting of the complaints. Joel Ewusiak of Tampa, Florida outlines several strategies to get the results your clients want. (9:57 min.)

2010 Amendments to Rule 26 of the Federal Rules of Civil Procedure Concerning New Limitations on Duties to Disclose Expert Witness Communications and Reports
Listen as New York attorney Greg Joseph, former Chair of the Section of Litigation, and expert in Federal Practice, discusses the dramatic amendments to Rule 26 of the Federal Rules of Civil Procedure going into effect on December 1, 2010, which confer greater protection from discovery on many types of expert witness communications and reports. (10:57 min.)

Conducting Informal Discovery under Rule of Professional Responsibility 4.2
Tempted to conduct informal discovery outside of the usual depositions and interrogatories?  Such informal discovery can be inexpensive and fruitful, but listen as Larry Fox, Crawford Lecturer of Law and Ethics at Yale Law School and partner at the Philadelphia firm of Drinker Biddle & Reath, reviews the significant restrictions that Rule 4.2 of the Rules of Professional Responsibility places on the conscientious investigating lawyer, including situations involving former employees, corporate entity control groups, and privileged information. (8:37 min.)

Keys to Conducting A Winning Deposition
Listen to Ronald Jay Cohen former Chair of the ABA Section of Litigation and founding partner of the Phoenix law firm of Cohen Kennedy Dowd & Quigley as he highlights the ten keys that will lay the foundation for a successful deposition. (24:20 min.)

The Meet and Confer
John Barkett
Shook, Hardy & Bacon
Miami, FL
(16:36 min.)


Hot Topics in Social Media Discovery for Litigators
This Roundtable, featuring Magistrate Judge Dana Douglas, ESI and legal technology expert Tom O'Connor, labor and employment litigator Amy Stewart, and commercial litigator Ashley Heilprin discuss hot topics in social media discovery. The discussion includes an overview of the types of “new” social media/electronic data available that may be relevant to particular cases; data collection tips, including crafting and responding to discovery requests; advising clients regarding preservation, discovery, and social media posts in litigation; and planning ahead for how to "get the dirt in." (50:38 min.)

E-Discovery Made Easy: Perspectives from In-House and Outside Counsel
E-discovery continues to be one of the most rapidly expanding and evolving areas of the law. Clients increasingly seek and expect their litigators to possess top-notch e-discovery management skills while controlling costs. Regardless of your experience or the size of your firm, in this Roundtable, Judith Beall, Justin Van Alstyne, and Giyoung Song discuss valuable insights and practical information about e-discovery best practices that will benefit you. Our panel of distinguished e-discovery experts—who are in-house and outside counsel at prominent companies and firms—intend to provide practical tips and advice to help you make e-discovery easy. (55:13 min.)

Update on Proportionality of Discovery Following the Amendments to the FRCP
One of the major changes to the Federal Rules of Civil Procedure was to limit discovery to the proportional needs of the case. Join District Judge Paul Grimm, Chief Magistrate Judge Karen Roby, and Magistrate Judge Kristen Mix to discuss awareness amongst litigation counsel of this shift regarding discoverability and the practical effect of this change to the rules and their experience in confronting issues regarding proportionality in the scope of discovery. (55:07 min.)


The information on “Sound Advice” is for discussion purposes only and does not reflect the opinions of the ABA. The information is not legal advice nor a substitute for legal counsel.