Houston Agenda

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
Coffee Break

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
    • OSHA
  • 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
Networking Luncheon

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
Networking Break

3:30pm – 4:30pm
Session 6: A Survey of Emerging ESI

  • Internet of Things
  • Cryptocurrencies
  • Advanced Device Forensics: GPS, Activity Data, etc.
  • Beyond E-mail – Slack, Hipchat, and other collaboration spaces
  • Stingrays?

4:30pm – 5:30pm
Networking Reception


8:30am – 9:00am
Continental Breakfast
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?

10:45am- 11:00am
Coffee Break

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.