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The State of Sanctions in 2013: Recent Developments and Possible Rule Amendments


Product Code - LGN197
Speaker(s): Moderator: Ronald J. Hedges, Ronald J. Hedges LLC; Thomas Y. Allman; Kenneth J. Withers, The Sedona Conference
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The imposition of sanctions for failure to preserve and spoliation of electronically stored information (ESI) may not be a daily occurrence. Nevertheless, the specter of a sanctions-related motion can be a real threat and a basis for what some call the “overpreservation” of ESI and of any other information discoverable under Federal Rule of Civil Procedure 26(b)(1) and its state equivalents.

Case law regarding what might trigger a duty to preserve and what conduct (or misconduct) could lead to a sanctions award continues to evolve. Against this background, the Judicial Conference of the United States has begun consideration of possible amendments to the Federal Rules that might, if adopted, limit the imposition of sanctions to certain conduct.

Educational Objectives

• Understand what might trigger the duty to preserve along a “spectrum” of events.

• Recognize what questions to ask of a client about its ESI.

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

• Understand the circumstances under which sanctions may be imposed from the perspectives of those seeking the imposition of sanctions and those defending against the imposition of sanctions.

Who would benefit most from attending this program?

This program is 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 may be seeking the imposition of – or seek to avoid the imposition of – sanctions.

Program Level: Intermediate to Advanced.

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

Moderator: Ronald J. Hedges, Ronald J. Hedges LLC; Thomas Y. Allman; Kenneth J. Withers, The Sedona Conference

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 PLI 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.

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