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The Great Preservation Debate: Where It Is Today and Where It Might Go



Tuesday, February 7, 2012
Product Code - LGN06
Speaker(s): Thomas Y. Allman, Cincinnati; Ronald J. Hedges, Of Counsel, Corodemus & Corodemus and Ronald J. Hedges LLC; Amy J. Longo, O’Melveny & Myers LLP; Robert D. Owen, Sutherland Asbill & Brennan LLP
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The current practice of "overpreservation" is directly related to the risk of being branded a “spoliator.” To many parties, this is unacceptable and stems directly from confusing and contradictory case law which has evolved along with the explosion and complexity of electronically stored information (ESI) and has provoked calls for reform. These calls include both "front-end" and "back-loaded" approaches, the first looking, among other things, to redefine the "trigger" for imposition of a duty to preserve with the latter focusing on the specifying conditions for the imposition of sanctions for failure to preserve.

This webinar will explore the current state of the law of preservation and the approaches suggested to change that law as well as the related law of sanctions. It will also explore the concept of "proportionality" and how that fits into preservation.

Educational Objectives:

• Learn how changes in rules would or could lead to reductions in overpreservation and a more equitable approach of the burdens and costs.

• Find out about detailed evaluations of specific proposals before the civil rules advisory committee for amendments to the Federal Rules of Civil Procedure. Attendees will learn what is being considered by The Judicial Conference of the United States and how amendments would apply to the preservation obligations imposed on their clients and the possibility of sanctions being imposed for a failure to preserve.

• Learn about other options, including a more robust application of "proportionality," a "new arrival" in considerations of the scope of a duty to preserve. Attendees will be exposed to different interpretations of proportionality and how the application of that concept may affect decisions about what must be preserved after the duty has been triggered.

Who would benefit from attending this program?

All "stakeholders" in the litigation process will benefit from this webinar:

• Counsel for entities as well as outside counsel will be empowered to participate in the crucial evaluation of the competing options and to better frame approaches to the scope of preservation in planning for preservation.

• The webinar will be of great benefit to members of the IT and RIM communities, whose responsibilities are directly affected.

Program Level:  Intermediate

Thomas Y. Allman, Cincinnati; Ronald J. Hedges, Of Counsel, Corodemus & Corodemus and Ronald J. Hedges LLC; Amy J. Longo, O’Melveny & Myers LLP; Robert D. Owen, Sutherland Asbill & Brennan LLP

Thomas Y. Allman / Cincinnati
Tom Allman is an attorney and consultant who speaks and writes extensively on the interrelationship of corporate compliance policy and the effective management of electronically stored information (ESI). He is co-editor of the PLI Electronic Discovery Deskbook and is an Adjunct Professor at the University of Cincinnati College of Law.

Mr. Allman is also Chair Emeritus and an active member of the Steering Committee of The Sedona Conference® Working Group 1 on Electronic Document Retention and Production. He helped draft The Sedona Conference® Best Practice Recommendations for Addressing Electronic Document Production and was Senior Editor of the Second Edition (2007). He has also authored or edited several other publications of The Sedona Conference®, including The Sedona Guidelines for Managing Information and Records in the Electronic Age, The Sedona Conference® Commentary on Legal Holds, The Sedona Conference® Commentary on Email Management, and The Sedona Conference® Best Practices Commentary on Search & Retrieval Methods. Mr. Allman practiced law as a Partner at Taft, Stettinius & Hollister LLP in Cincinnati until joining BASF Corporation as Vice President, Litigation, in 1993. He retired in 2004 as Senior Vice President, General Counsel, and Chief Compliance Officer at BASF and thereafter spent three years as Special Counsel to Mayer Brown LLP in Chicago.

Ronald J. Hedges, Principal /  Of Counsel, Corodemus & Corodemus and Ronald J. Hedges LLC
Ron Hedges is a special master, arbitrator, and mediator specializing in 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 things, 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®.

Amy J. Longo, Partner / O’Melveny & Myers LLP
Amy Longo is a partner in the Financial Services Practice and one of the founders and leaders of the Electronic Discovery and Document Retention Practice. She represents corporations, their directors and officers in ERISA and other class actions, derivative suits, and a range of complex litigation, as well as internal investigations and enforcement matters. In addition, Ms. Longo counsels public and private companies on their document retention policies and best practices for electronic discovery and litigation response plans.

Ms. Longo was listed in Legal 500 United States (2009 and 2010), noting that she is praised for her "particular expertise in e-discovery and document retention issues, as well as being a great litigator." She has been recognized numerous times as a "Southern California Super Lawyers Rising Star." Ms. Longo writes and lectures frequently at a national level and serves as an adjunct professor at Pepperdine University's School of Law.

Robert D. Owen, Partner / Sutherland Asbill & Brennan LLP
A member of Sutherland’s Litigation Practice Group, Bob Owen has more than 35 years of experience in New York commercial litigation. A nationally recognized adviser to financial services, energy and technology companies, Mr. Owen is known for creative and efficient dispute resolution. He has handled hundreds of cases before federal and state courts and arbitration panels throughout the United States. For more than 20 years, Mr. Owen led the commercial litigation boutique firm of Owen & Davis PC, which he co-founded. The 12-lawyer firm represented Fortune 500 clients in their complex litigation matters in the New York area and around the country.

Mr. Owen is widely recognized for his leadership in e-discovery, having been an early adopter of litigation support technology at Owen & Davis and then founding the E-Discovery and Information Management Practice at another national law firm. Currently, he is a member of the editorial advisory board of Law Technology News (American Law Media publication), a participant in the Managing Information and Records in the Electronic Age working group of The Sedona Conference® and is listed by Chambers USA, Band 1, and Chambers Global in the e-discovery field.

 

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.

• Bloomberg BNA Subscriber - OnDemand format $199 
• Non-Subscriber - OnDemand format $249 
• CD recording of program $199 (Subscriber and Non-Subscriber)

  

Registration for Legal & Business programs is simple. You may either visit the registration page to register -or- call 1-800-372-1033, Option 6, and refer to the date and title of the program. Lines are open Monday through Friday from 8:00 a.m. to 8:00 p.m. ET.