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Overpreservation in Response to the Duty to Preserve: Fact or Fiction or Both?


Product Code - LGN31
Speaker(s): Ronald J. Hedges, Ronald J. Hedges LLC and Of Counsel, Corodemus & Corodemus; John J. Rosenthal, Winston & Strawn LLP; Jeane A. Thomas, Crowell & Moring LLP; Henry Kelston, Milberg LLP
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What happens when the duty to preserve is “triggered” and, in response, an organization must preserve, among other things, large volumes and/or multiple “forms” of electronically stored information (ESI)?

Many argue that “overpreservation” of ESI is now the norm. When an organization reasonably anticipates the prospect of litigation, often before a formal complaint, the organization, out of fear of a subsequent allegation of spoliation, preserves “everything,” at an enormous cost.

Is this true? Or is overpreservation a rallying cry for those who would limit discovery? What role does or should proportionality have in the decision of what to preserve? Can this issue be addressed through changes to Rules of Procedure or other legal developments? This program explores these and related questions.

Educational Objectives:

• What is the scope of the duty to preserve for a putative defendant, either when a complaint is served or before?
• How can a defendant limit the scope of its duty to preserve before there is an opportunity to ask a judge for relief?
• How can a defendant decide on a reasonable and proportionate scope?
• Is there, in fact, overpreservation and why do some organizations overpreserve?
• Can overpreservation be addressed through changes to the Civil Rules or other legal developments?

Who would benefit from attending?

• Inside counsel who make preservation decisions
• Outside counsel involved in making decisions about the scope of preservation and assisting in implementing legal holds
• Inside information technology (“IT”) personnel who assist in implementing legal holds
• Inside records information management (“RIM”) personnel who assist in implementing legal holds
• Outside consultants involved in implementing preservation efforts

Program Level: Advanced

Credit Available: CLE (For more information, please click on the “CLE Credit” tab.)

Ronald J. Hedges, Ronald J. Hedges LLC and Of Counsel, Corodemus & Corodemus; John J. Rosenthal, Winston & Strawn LLP; Jeane A. Thomas, Crowell & Moring LLP; Henry Kelston, Milberg LLP

Ronald J. Hedges, Principal, Ronald J. Hedges LLC and Of Counsel, Corodemus & Corodemus
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 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®.

John J. Rosenthal, Partner, Winston & Strawn LLP
John Rosenthal is a litigation partner in the firm’s Washington, D.C. office who represents clients across the globe in an array of complex antitrust and litigation matters. His practice also involves counseling clients on a variety of trade regulation, trademark, and commercial issues.

Mr. Rosenthal is chairman of the firm’s e-discovery and electronic information practice group and is one of the most experienced practitioners in the United States in the area of electronic discovery and risk reduction from electronic discovery. With this background, he counsels a wide variety of companies on record retention programs, compliance with electronic discovery, and implementing programs to reduce risk associated with the generation and retention of electronic records and privacy.

Mr. Rosenthal also lectures across the United States on the issues of electronic discovery and record retention programs. Mr. Rosenthal is a member of the Steering Committee of Working Group 1 of The Sedona Conference on Best Practices for Electronic Discovery and Records Management, a group of lawyers, judges and vendors focusing on the development of the law regarding electronic discovery and retention issues in both the United States and the European Union. To date, this group has put together two authoritative pieces on these issues, which have been cited by various federal and state courts. (See www.thesedonaconference.com for further reference.) Mr. Rosenthal also is an advisory board member of the Georgetown University Law Center Continuing Legal Education E-Discovery Institute, Lexis-Nexis, Surety, Inc., Electronic Evidence, Inc., Guidance Software, and TCDI. He earned a B.A., with honors, in Political Science from Johns Hopkins University and a J.D. from the University of Virginia School of Law.

Jeane A. Thomas, Partner, Crowell & Moring LLP
Jeane Thomas is Chair of Crowell & Moring’s E-Discovery and Information Management Group and a partner in Crowell & Moring's Antitrust Group. In her role with the E-Discovery practice, Ms. Thomas has managed many types of E-Discovery matters in both government investigations and private litigation. She regularly counsels clients on Litigation Readiness Planning, including the development and application of effective document/data
retention policies, legal hold practices, and corporate content policies, as well as E-Discovery response plans. Ms. Thomas is a participating member of the Sedona Conference Working Group on E-Discovery, and co-chairs the Working Group's Healthcare Team. She is also a member of the Advisory Board and Faculty of the Georgetown University Law Center Advanced Institute for EDiscovery. She regularly speaks and writes on E-Discovery issues.

Ms. Thomas is engaged in all types of antitrust representations, including mergers and joint ventures, class and individual civil litigation, and civil and criminal government investigations. She also counsels clients on a broad range of antitrust issues, including intellectual property and licensing issues, trade association law, the Hart Scott Rodino Act, and pricing and distribution issues. She has focused extensively on the telecommunications, technology, chemicals and healthcare/pharmaceuticals industries.

Ms. Thomas earned a B.A. in Criminology, summa cum laude, from Ohio State University, and a J.D., cum laude, from Georgetown University Law Center.

Henry Kelston, Senior Counsel, Milberg LLP
Henry Kelston’s practice is concentrated in the areas of complex litigation and electronic discovery. He has extensive experience in state and federal court litigation, administrative proceedings and arbitrations. Prior to joining Milberg, he practiced at Proskauer Rose in New York and Siegel, O’Connor & Kainen in Connecticut.

Mr. Kelston is admitted in the United States District Courts for the Southern and Eastern Districts of New York and the District of Connecticut. He earned a B.S. from Tufts University and a J.D. from New York University School of Law.

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.