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8:30am – 9:00am
Continental Breakfast and Registration
9:00am – 9:30am
Session 1: Opening Remarks and Polling the Audience
- What are your pain points, biggest issues?
- What is your role?
- What do you want to get out of the seminar?
9:30am – 10:30am
Session 2: Information Governance v. Defensible Disposition
- Who’s involved in the ongoing data management process, if any?
- How to create an IG culture.
- Data in the Wild: Employees’ authorized and ad hoc use of the Cloud, Instant Messaging, and other communication technologies.
- Social Media: employers’ rights to review, limit use and seek discovery of posts on their own employees’s pages.
- Best practices for departing or transitioning employees.
- How to (defensibly) get rid of data that no longer has business value and is not under a preservation obligation.
10:30am – 11:00am
11:00am – 12:00pm
Session 3: BYOD, COPE or IDKW?
- BYOD or COPE
- Risks and rewards day-to-day and in eDiscovery
- wage-and-hour risks
- NLRA context
- cross-border issues
- Device-use policies: key considerations.
- Practical approaches to preserving/collecting device data.
- Protecting trade-secret Information on dual-use devices.
- Is employee privacy an oxymoron in the U.S.?
12:00pm – 1:00pm
1:00pm – 2:00pm
Session 4: Proportionality – Sea Change or Minor Tweak?
- Has FRCP 26 (b)(1) front-loaded the discovery dispute process?
- What facts/metrics do parties need to bring to the table?
- Can proportionality be achieved without transparency?
- Is Oppenheimer still the standard for discovery scope?
- Does proportionality apply to a R. 45 subpoena?
Session 5: Post-Amendment Preservation & Spoliation
- Prospective proportionality – how safe (or significant) is it to limit preservation at the outset based on proportionality?
- What are “reasonable steps”? More than legal holds?
- What is the range of curative measures under FRCP 37(e)(1)?
- How does one practically establish intent to deprive?
- What about non-ESI preservation/spoliation?
- Is “inherent power” to sanction alive and well?
- Cases: O’Berry v. Turner; Internmatch; Best Payphones; Living Color
3:00pm – 3:30pm
3:30pm – 4:30pm
Session 6: A Survey of Emerging ESI
- Internet of Things
- Advanced Device Forensics: GPS, Activity Data, etc.
- Beyond E-mail – Slack, Hipchat, and other collaboration spaces
4:30pm – 5:30pm
8:30am – 9:00am
9:00am – 9:45am
Session 7: EU GDPR’s Impacts on eDiscovery
- Do U.S. legal proceedings fir within the various exceptions in the GDPR and/or in prior Article 29 Working Party promulgations?
- Should written consent still be sought even in light of the exceptions’ apparent applicability?
- How do GDP requirements intersect with imposition of litigation holds?
- Compliant agreements that companies/litigants and law firms have in place with downstream service providers (outside counsel, co-counsel, vendors, cloud platform providers, etc.)
- What best practices still exist, e.g., anonymization and in-country culling/reviewing?
- Privacy Shield certification- adoption by law firms and other eDiscovery service providers.
9:45am – 10:45am
Session 8: Possession, Custody and Control
- Legal Right v. Practical Ability: how far does P/C/C extend
- Cross-border issues, including GDPR (effective 5/25/18).
- When is there custody of/control over employees’ data?
- Does a company have P/C/C over the data of: Parent Co.? Affiliates? Subsidiaries? Agents? Employees? Directors?
- Do obligations differ when served a R. 45 subpoena only?
11:00am – 12:00pm
Session 9: Ethics in E-Discovery
- Insight into, and involvement in, client’s preservation/collection
- Meet/confer duties
- Privilege Protection – Claw-back agreements
- Avoiding “weaponization” of discovery
- Ethical obligations when investigating or collecting on-line evidence
- Ethics of social-media postings and interactions
- Need for facility with technical as part of duty of competence
- Duty to supervise other lawyers and non-lawyers
Agenda is subject to change.