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Getting Ahead of e-Discovery Costs and Burdens in Commercial Litigation Through Pre-Litigation Contracts


Product Code - LGN54
Speaker(s): Jay Brudz, Williams Mullen; Jonathan Redgrave, Redgrave LLP
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Counsel should consider whether contractual provisions can provide greater clarity and guidance to parties than the legal framework surrounding electronic discovery issues. Specifically, much of the uncertainty, excess costs, and burdens related to electronic discovery in the world of commercial litigation can be obviated through the mutual adoption and ratification of terms conscribing the scope of discovery in the event of a dispute that would be the subject of arbitration or litigation. In essence, such clauses would provide a pre-defined set of fair rules that the parties agree to follow in a dispute relating to any preservation or discovery of electronically stored information.

To explore the viability of such provisions, the faculty for this program identifies the type of model clauses that could be included in commercial contracts. For each type of clause, the potential benefits and risks presented by these provisions as they relate to discovery in civil litigation are identified. Next, the general applicability of public policy doctrines and whether such discovery-limiting provisions would be viewed by courts with favor or disfavor are explored. Finally, the faculty analyzes the potential legal arguments that could be raised to challenge the enforceability of such provisions.

In sum, there is considerable merit for considering contractual provisions that set forth common ground for handling the preservation, collection, and production of information by parties to commercial contracts that may later become involved in related disputes. Equally important, it is likely that such provisions will be uniformly upheld and enforced absent unique circumstances.

Educational Objectives

• Learn the clauses to include in commercial contracts to potentially limit costs related to future e-Discovery issues.
• Understand the benefits and risks associated with the adoption of such clauses.
• Find out about challenges to the enforceability of contractual provisions related to preservation and discovery obligations.

Who would benefit from attending the program?

• Corporate Counsel (contract counsel and litigators)
• Litigation counsel
• Attorneys and other professionals practicing in the field of e-Discovery

Program Level: Intermediate

Credit Available: CLE. For more information, please click on the "CLE Credit" tab.

Jay Brudz, Williams Mullen; Jonathan Redgrave, Redgrave LLP

Jay Brudz, Williams Mullen
Jay Brudz co-chairs Williams Mullen’s e-Discovery and Information Governance Section. His experience includes building and managing world class e-Discovery operations, internal compliance and FCPA investigations, and developing enterprise-level information governance best practices.

Prior to joining the firm, Mr. Brudz served in several roles focusing on the intersection of applied technology and law. Most recently, he served as Senior Counsel for Legal Technology at General Electric where he created and led their corporate eDiscovery center supporting over 1200 attorneys. In this role he was also responsible for all corporate technology initiatives within GE’s legal operation, including the successful implementation of legal hold, e-billing, insider trading compliance, intranet and patent docketing systems. Mr. Brudz also previously served as President and Senior Forensic Consultant of Verabit, where he conducted computer forensic investigations and provided expert consultation and testimony in cases ranging from employee misappropriation of trade secrets to FCPA investigations. Prior to that, he was a system architect and lead developer for a database backed web-based development company specializing in creating customized systems for corporate legal operations. Mr. Brudz is an accomplished Java, PHP, VisualBasic and PL-SQL programmer, and he has experience with many other technologies.

Mr. Brudz has also served as Litigation and Transactions counsel for GE Industrial Systems, where he managed a diverse portfolio of cases and M&A transactions for a $4.5 billion division of General Electric.

Mr. Brudz is a skilled and frequent speaker at legal industry events on the topics of legal technology and eDiscovery. His work has been published in several publications, including eDiscovery for Corporate Counsel, Storage Magazine and Connecticut Law Review. He has served as an adjunct professor at the University of New Haven where he taught courses on Network Security and Computer Crime. He earned his bachelor of arts degree, cum laude, from the University of Connecticut and his juris doctor degree from the University of Connecticut School of Law. Mr. Brudz is admitted to practice in Connecticut.

Jonathan Redgrave, Redgrave LLP
Jonathan Redgrave is a founding partner of Redgrave LLP. He has extensive experience in all areas of complex litigation in both state and federal courts and focuses his practice in the areas of Information Law, which include electronic discovery, records and information management, as well as data protection and privacy issues. He has authored, co-authored, and edited numerous publications, including serving as Editor-in-Chief of “The Sedona Principles®” and speaks around the world on topics including cross-border discovery, Information Governance, privacy, data security, and emerging technologies.

Mr. Redgrave helped found, was the first Chair of, and is currently Chair Emeritus of The Sedona Conference® Working Group on Electronic Document Retention and Production (WG-1). He also serves on the Advisory Board of The Sedona Conference®. He was a founding co-chair of the Georgetown University Law School E-Discovery Institute and serves on the Advisory Committee on Electronic Records Archives for the United States National Archives and Records Administration. He is a member of several trade and bar associations.

Mr. Redgrave received a J.D. from the University of Minnesota Law School, cum laude, and a B.A. from the University of Notre Dame, cum laude. He is admitted to practice in the District of Columbia and in Minnesota.

This program is CLE-credit eligible.

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 Legal and Business CLE Accreditation Coordinator.

Hardship Policy
Bloomberg BNA offers a hardship policy for any attorney earning less than $30,000 per year. If an attorney wishes to take advantage of this option, he or she must do so in writing and also provide proof of hardship. If approval is granted, a discount of 50% off the full registration price of the program will be awarded.

Questions
For more information about Mandatory or Minimum Continuing Legal Education (MCLE) requirements, visit the American Bar Association website at http://www.abanet.org/cle/mandatory.html.