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Amending the Federal eDiscovery Rules: Fallout From the First Public Hearing

Amending the Federal eDiscovery Rules: Fallout From the First Public Hearing
Product Code - LGA209
Speaker(s): Hon. Craig B. Shaffer, United States Magistrate Judge, District of Colorado; Moderator: Ronald J. Hedges, Ronald J. Hedges LLC; Thomas Y. Allman; Kenneth J. Withers, The Sedona Conference
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This program will focus on what transpired at the November 7 public hearing addressing proposed amendments to the Federal Rules of Civil Procedure. Among other things, these amendments are intended to address sanctions for failures to preserve all forms of discoverable information, including electronically stored information (ESI), by replacing existing Rule 37(e) and by amending Rule 26(b)(1) on the scope of discovery to reflect proportionality. The proposed amendments also address other issues arising from the 2010 Conference on Civil Litigation held at Duke University’s Law School.

Today, the case law on each of these topics is in flux. Federal courts across the nation have established varying standards for the imposition of spoliation standards, allegedly resulting in a prevalent culture of routine over-preservation. Understanding the likely enactment of a new Rule 37(e) and the likely impact of any uniform rule on the topic is of critical importance to in-house and retained counsel, private or governmental, who counsel their clients on and litigate about any or all of the topics. That understanding is even more critical for entities that litigate, either as a plaintiff or a defendant or both, in multiple federal judicial districts and courts of appeals.

Perhaps of equal importance is a full understanding of the proposition to include proportionality principles in the scope of discovery, and how, if at all, those changes might impact preservation planning and the practice of discovery.

This program will assist those who deal with questions of preservation, scope of discovery and sanctions and will enable the audience to follow – and perhaps participate in by submitting questions for the faculty – the ongoing debate about amending the Federal Rules.

Educational Objectives:

• Understand the extent to which the trigger and scope of the duty to preserve will change, if at all, if Rule 37(e) and its five “factors” are enacted.

• Appreciate the impact of proportionality on the scope of discovery under Federal Rule 26(b)(1).

• Understand the circumstances under which sanctions may be imposed for “willful” or “bad faith” conduct from the perspective of both seeking sanctions and defending against the imposition of sanctions.

• Gain a better grasp of the magnitude of the proposed amendments to the Federal Rules of Civil Procedure and the impact of the amendment process.

Who would benefit most from attending this program?

This program will be of importance to any attorney, in-house or retained, government or private, who advises clients about the duty to preserve or the scope of preservation. Attendance will also benefit attorneys who litigate in the federal or state courts and who may be seeking – or seeking to avoid – the imposition of sanctions.

Program Level: Advanced. (General, prior knowledge of the elements of eDiscovery and the proposed rule amendments is assumed.)

Credit Available: CLE. For additional information, please see the “CLE Credit” tab.

Hon. Craig B. Shaffer, United States Magistrate Judge, District of Colorado; Moderator: Ronald J. Hedges, Ronald J. Hedges LLC; Thomas Y. Allman; Kenneth J. Withers, The Sedona Conference

Hon. Craig B. Shaffer, United States Magistrate Judge, District of Colorado
Hon. Craig B. Shaffer has been a United States Magistrate Judge for the District of Colorado since January 2001. Magistrate Judge Shaffer graduated from the College of William and Mary and earned a juris doctor cum laude from Tulane University’s School of Law. He has served as a Navy judge advocate, a senior trial attorney with the United States Department of Justice, and in private practice as a partner in two different Denver law firms. He is also a member of the Advisory Board for the Sedona Conference and has been a contributor to the University of Denver’s Institute for the Advancement of the American Legal System. Judge Shaffer is a frequent presenter at conferences and seminars addressing electronic discovery, including presentations organized by the Sedona Conference, Colorado’s Faculty of Federal Advocates, the Colorado Chapter of the Association of Corporate Counsel, Bloomberg BNA, the ABA’s Labor and Employment Law Section, the Rocky Mountain Intellectual Property Institute, and Georgetown University Law Center’s Advanced E-Discovery Institute.

Moderator: Ronald J. Hedges, Ronald J. Hedges LLC
Ron Hedges is a special master, arbitrator, and mediator working with e-discovery and privilege issues. He served as a United States Magistrate Judge in the District of New Jersey from 1986 to 2007. He is a member of The Sedona Conference® Advisory Board and a member of the Advisory Board of the Advanced E-Discovery Institute of Georgetown University Law Center, where he teaches e-discovery and e-evidence. He also teaches at Rutgers School of Law—Newark. Mr. Hedges is author of, among other publications, Discovery of Electronically Stored Information: Surveying the Legal Landscape (BNA: 2007) and a co-author of Managing Discovery of Electronic Information: A Pocket Guide for Judges (Federal Judicial Center: 2007). He serves on the Advisory Board for The Sedona Conference®.

Thomas Y. Allman
Tom Allman is an attorney residing in Cincinnati, Ohio and an Adjunct Professor of Law at the University of Cincinnati College of Law. Prior to retirement as General Counsel and Chief Compliance Officer of BASF Corporation, he was an early advocate of what became the 2006 Amendments to the Federal Rules of Civil Procedure. He is Chair Emeritus of The Sedona Conference® Working Group on Electronic Production and Retention (“WG 1”), having contributed to and edited a number of key Sedona publications. Mr. Allman also serves as one of the editors of the Electronic Discovery Deskbook and was a Member of the E-Discovery Panel at the 2010 Duke Litigation Conference that recommended additional rulemaking on the topic of preservation and spoliation rulemaking. He has published widely on the topic of technologically neutral eDiscovery rulemaking in Federal and State courts, including “E-Discovery in Federal and State Courts after the 2006 Federal Amendments,” which is also available in full text on Bloomberg BNA’s eDiscovery Resource Center.

Kenneth J. Withers, The Sedona Conference®
Ken Withers is the Deputy Executive Director for The Sedona Conference®, an Arizona-based non-profit law and policy think tank which has been on the forefront of issues involving complex litigation, intellectual property, and antitrust law. Since 1989, he has published several widely-distributed papers on electronic discovery, hosted a popular website on electronic discovery and electronic records management issues, and given presentations at more than 300 conferences and workshops for legal, records management, and industry audiences. Mr. Withers’ most recent publications are "Ephemeral Data and the Duty to Preserve Discoverable Electronically Stored Information," 37 U. Balt. L. R. 349 (2008) and "Living Daily with Weekley Homes," Texas State Bar Advocate, Vol. 51 (Summer 2010), 23. From 1999 through 2005, he was a Senior Education Attorney at the Federal Judicial Center in Washington D.C., where he developed Internet-based distance learning programs for the federal judiciary concentrating on issues of technology and the administration of justice. Mr. Withers contributed to several well-known FJC publications, including the Manual for Complex Litigation, Fourth Edition (2004), Effective Use of Courtroom Technology (2001), and the Civil Litigation Management Manual (2001).

This program’s CLE-credit eligibility varies by state. Bloomberg BNA is an accredited provider in the states of New York*, California, Pennsylvania, Texas and Virginia, and most other jurisdictions grant CLE credit on a per-program basis. At this time, Bloomberg BNA does not apply directly to the states of Florida, Rhode Island, Montana and Hawaii although credit is usually available for attorneys who wish to apply individually. Additionally, the following states currently do not grant credit for Bloomberg BNA OnDemand programming: Arkansas, Ohio, Nebraska, and Delaware. All requests are subject to approval once the live webinar has taken place or the customer has viewed the OnDemand version. Please contact the Bloomberg BNA accreditations desk if you have specific questions that have not been addressed.

If you have further questions regarding a specific state or how to file for CLE credit, please contact Bloomberg BNA customer service at 800-372-1033 and ask to speak to the CLE Accreditation Coordinator.

Hardship Policy
For information regarding Bloomberg BNA’s Hardship Policy, please visit the Continuing Education Information page.

For more information about Mandatory or Minimum Continuing Legal Education (MCLE) requirements, visit the American Bar Association website at

*Bloomberg BNA is an accredited provider in New York for experienced attorneys only.