Electronic Records Management and Digital Discovery: Practical Considerations for Legal, Technical, and Operational Success
Scope and Purpose
This annual course of study, comprising more than 16 hours of instruction, offers a comprehensive examination of what has been called “electronic evidence,” the billions of communications that were once confined to paper, but now exist as e-mails and other records kept in electronic form. This development has fast become one of the most challenging in the practice of law and can put you and your clients at potential risk if not properly addressed. This is a reality now!
The course starts, not with the new discovery provisions of the Federal Rules of Civil Procedure, but several steps earlier, with Electronic Records Management: how organizations keep and manage information in electronic form. To do their jobs well, litigators have to understand how data is created and stored; concepts such as metadata; and corporate procedures for records management, maintenance, and destruction. It is also essential for lawyers to have a basic understanding of computer forensics and the recovery of “lost” information. Professionals who practice records management or deal with document retention within their corporations or organizations will find that this course offers enormous relevance to their strategic and tactical decisions. In the brave new world of electronic discovery, forewarned is forearmed!
Having provided the foundation knowledge of the technological issues, the course moves on to consider related and important legal issues:
How to encourage records managers and corporate executives to interact with in-house and outside counsel to develop records management policies and procedures
Strategies for document retention and elimination, and how to get information from the files of your own clients with confidence that you haven’t missed anything relevant, an omission that could lead to embarrassment and sanctions
How to deal with discovery of information in electronic form
How to approach data mining and search tasks
Spoliation issues, including civil and criminal liability under the Sarbanes-Oxley Act
How to turn electronic “information” into “evidence”
How to deal with e-discovery under the soon-to-be-adopted amendments to the Federal Rules of Civil Procedure
Ethics and professional responsibility issues (1.25 hours)
The third day of the course deals with the latest approaches to preparing and presenting evidence and demonstrative exhibits at a jury or bench trial. This panel is followed by an examination of an expert witness, incorporating these skills into a practical demonstration.
A faculty of federal judges, practitioners, and experts presents and analyzes these issues and questions using a combination of lectures, panel discussions, technological demonstrations, and litigation demonstrations. Time is reserved to respond to registrants’ questions.
Planning Chairs
Ronald J. Hedges, Nixon Peabody LLP, New York; former U.S. Magistrate Judge, Newark, New Jersey
Samuel H. Solomon, Founder and CEO, DOAR Litigation Consulting, Lynbrook, New York
Faculty
Woods K. Abbott, Senior Manager of Legal Operations, Raytheon Company, Waltham, Massachusetts
Thomas Y. Allman, Mayer, Brown, Rowe & Maw LLP, Chicago
Jason R. Baron, Director of Litigation, U.S. National Archives and Records Administration, College Park, Maryland
M. James Daley, Redgrave Daley Ragan & Wagner LLP, Kansas City, Missouri
Andrew D. Goldsmith, Assistant Chief, Environmental Crimes Section, Environment and Natural Resources Division, U.S. Department of Justice, Washington, D.C.
Anne Kershaw, A. Kershaw, P.C., Tarrytown, New York
Amy J. Longo, O’Melveny & Myers LLP, Los Angeles
James L. Michalowicz, Altman Weil, Inc., Newtown Square, Pennsylvania
Thomas C. Moore, Proskauer Rose LLP, New York
Patrick L. Oot, Jr., Director of Electronic Discovery and Senior Counsel, Verizon Communications, Arlington, Virginia
Deidre Paknad, President and CEO, PSS Systems, Inc., Mountain View, California
Eric J. Schwarz, National Leader, Legal Technology Services, Fraud Investigation and Dispute Services, Ernst & Young LLP, Dallas
Ariana J. Tadler, Milberg Weiss & Bershad LLP, New York
Deborah Tatar, IT Director, Altria Corporate Services, Inc., New York
Judy L. VanDusen, President, VanKorn Group, Ltd., Beverly Hills, Michigan
David J. Waxse, U.S. Magistrate Judge, Kansas City, Kansas
ALI-ABA Staff: Thomas M. Hennessey, Assistant Director, Office of Courses of Study
Program Schedule
Thursday, May 17, 2007
- 7:30 a.m. Registration and Continental Breakfast
- Video Webcast Segment A
- 8:30 a.m. Introductory Remarks and Course Overview
- Technological and Operational Issues
- 8:45 a.m. Introduction to Terminology, Data, and Information Structures – Mr. Solomon
- * Data Identification: How They Are Created, Stored, and Managed
- * Metadata: What It Is and Why It’s Important
- * Where To Look for Electronic Documents: Back-up Tapes, PDAs, Servers, Laptops, etc.
- * Estimating the Amount of Information that Can Be Yielded from a Given Set of Data
- * Demonstration: Files, FAT, and Folders – Is the Evidence Gone?
- 10:10 a.m. Best Practices in Information Acquisition and Preservation – Ms. Paknad and Messrs. Abbott and Schwarz
- * What To Do and What To Avoid
- * Defining a Response Plan
- * The Process of Managing Data Deduplication
- 10:45 a.m. Networking Break
- 11:00 a.m. Speaking the Same Language: I.T., Records Management, and Legal Work Together on Process and Procedure – Ms. Kershaw, Moderator; Mr. Michalowicz and Ms. Tatar
- * Why Keep Data
- * What Data To Keep
- * What Format To Use
- * Preservation and Collection Protocols
- * E-mail Archiving
- * E-mail Management
- * Pricing Pitfalls
- 12:00 noon Lunch Break
- Video Webcast Segment B
- 1:15 p.m. Records Management –Mr. Michalowicz, Moderator; Mss. Kershaw, Tatar, and VanDusen
- 3:15 p.m. Networking Break
- 3:30 p.m. Educating Employees on the Importance of Information Records Management and Preservation: Screening and Discussion of the New Information Management Compliance Training Video, “Keeping Good Company” – Judge Hedges and Messrs. Abbott and Schwarz
- 4:00 p.m. Data Mining: New Approaches and New Research on Search and Retrieval –Messrs. Baron, Oot, and Solomon
- * How To Approach Data Mining and Search Tasks: Setting Up a Good Process
- * The Problem with Keywords
- * Evaluating Alternative Search Methods
- * Report on Current Government-sponsored Research
- * Practice Pointers
- 5:30 p.m. Adjournment for the Day; Networking Reception for Registrants and Faculty
Friday, May 18, 2007
- 8:00 a.m. Continental Breakfast
- Video Webcast Segment C
- Legal Issues
- 8:30 a.m. Criminalization of Spoliation – Judges Hedges and Waxse and Mr. Goldsmith
- 9:15 a.m. Discovery and Judicial Decisions – Judges Hedges and Waxse, Mr. Daley, and Ms. Longo
- * Framing Discovery Requests
- * Addressing Discovery Disputes
- * Depositions To Uncover Electronic Evidence
- * Cost Shifting and Burdens
- * Data Sampling and Developing Search Protocols
- * Producing to the Other Side
- * Spoliation
- * Criminal vs. Civil Litigation: Differences in Electronic Discovery
- * Sampling
- * Developing Search Terms
- 11:00 a.m. Networking Break
- 11:15 a.m. Demonstration: Spoliation Hearing and Motion for Sanctions – Judge Hedges, Mr. Daley, and Mss. Longo and Tadler
- 12:15 p.m. Lunch Break
- Video Webcast Segment D
- 1:30 p.m. Unique Issues under the Rule Amendments – Mr. Allman, Moderator;Judge Hedges and Mss. Longo and Tadler
- * Accessibility
- * Safe Harbor
- * Form of Production
- 2:45 p.m. Networking Break
- 3:00 p.m. Ethical Considerations in Electronic Discovery –Judge Waxse and Mr. Daley
- * Waiver
- * Inadvertent Production
- * Encryption
- 4:15 p.m. Adjournment for the Day
Saturday, May 19, 2007
- 8:00 a.m. Continental Breakfast
- Video Webcast Segment E
- 8:30 a.m. Technology-Enhanced Presentations before Judges, Juries, ADR panels, and SROs — Judge Waxse and Messrs. Hedges and Solomon
- * Use of software to present electronic documents
- * PowerPoint tips and tricks
- * Presentation technology
- * Commentary on effectiveness, admissibility, and balance
- * Do’s and don’ts based on real-life experience
- 10:00 a.m. Networking Break
- 10:15 a.m. Technology-Enhanced Presentations (continued)
- 12:00 noon Adjournment
Total 60-minute hours of instruction: 16.5, including 1.25 hours of ethics and professional responsibility
Here's what registrants have said about this course:
This course is one of the best CLE courses I have attended. Excellent faculty, excellent scope.
I thought that this was an excellent course with a lot of very useful information. The speakers were very knowledgeable and alerted the audience to the important changes in the Federal Rules.
I thought the presentations and content were excellent. I was happy that real-life instructors and judges’ expectations were discussed and batted around. I leave your seminar well-armed with technical plans and the knowledge to effectively assist my attorneys and our clients.
Excellent course - very thoughtful and thorough collection of highly qualified professionals as presenters - great illustration and perspective - ’did not watch my watch’ very enjoyable. One of the best, if not the best, conferences I have attended.
There are absolute ’superstars’ on these panels! Well done! I learned a great deal from this event.
This was my first ALI-ABA course and I found it informative, captivating, and thoroughly on point. A panel consisting of practitioners and judges really gave the seminar an interesting twist.
Great program, timely, interesting and necessary education area for both corporate and litigation counsel.
This is the first seminar in 15 years where I took pains not to miss any part of the presentation. The presenters were excellent, the presentations consistently interesting and informative.
