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Electronic Evidence and E-Discovery: Problems and Perils for Colleges and Universities Thursday, November 30, 2006 |
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| Schedule | Fees | Register | Speakers | Resources | Ask a Question | CLE | FAQ | Home | |
| Once upon a time litigation
discovery involved locating and producing paper files and documents and little else. In
complex litigation, even that task could be daunting enough, but those days are long gone.
With the advent of the digital age, it is now estimated that well over 90% of all
information is generated on computers in electronic format. Much of that information will
never be reduced to paper. The sheer volume of electronic information is staggering--in
terms of email alone, it has been estimated that in 2006 sixty billion email messages are
sent each day. A list of where and in what formats electronic information may be located
illustrates the potential challenge posed by a modern discovery request--such information
may reside on desktop computer hard drives, laptop computers, flash drives and other
portable storage devices, network servers, personal data assistants (PDA's) and of course
back-up tapes. Electronic information subject to preservation and discovery also includes
metadata embedded in email, documents and devices. Preparing for and responding to a
discovery request encompassing electronically stored information requires careful planning
and preparation by institutional counsel, information technology personnel and those in
possession of relevant electronic information. On December 1, new amendments to the Federal Rules of Civil Procedure governing the discovery of electronically stored information (ESI) will take effect. These amendments will affect discovery in all federal litigation. Among other things, the new rules: * Facilitate early attention by counsel to electronic discovery issues, including automatic disclosure of certain information related to electronic discovery and discussion of the form or forms in which electronic information will be produced * Create categories of ESI that are "reasonably accessible" and "not reasonably accessible" * Provide a safe harbor for inadvertent document destruction * Permit the return of inadvertently disclosed privilege information The new rules arrive in the wake of an increase in litigation surrounding electronic discovery, including highly publicized cases where parties suffered severe sanctions for their failure to properly preserve and produce ESI--notably adverse inference instructions, reversals of the burden of proof, and steep monetary penalties. This program will describe the new rules and the underlying duty to preserve electronic evidence, including when and how to implement and monitor litigation holds designed to preserve discoverable information. A case study will highlight the key issues counsel and administrators will face in complying with e-discovery requests, including: * Creation of a plan * Identifying relevant electronic information * Conducting and documenting the search for electronic information * Production in the required format and other issues involved in successful implementation of a litigation hold and compliance with electronic discovery requests. NACUA members Tom D'Antonio of Ward, Norris, Heller & Reidy, LLP and Nelson Roth, Deputy University Counsel and Chief of the Litigation Section of Counsel's Office at Cornell University will share their experience and expertise and respond to registrant questions. Dana Scaduto of Dickinson College will moderate. Please join them to learn about this new challenge in higher education litigation and how to prepare for it. This program, presented by NACUA in cooperation with EDUCAUSE will be of interest to college and university counsel representing the institution in litigation or with responsibility for the oversight of litigation. The presenters will assume registrants have a basic understanding of the litigation procedures and the discovery process. Campus administrators who may benefit from the program include information technology personnel, academic and business administrators, human resource administrators and risk managers. After reviewing the program schedule, members may wish to consider inviting these or other administrators on their campus to join them for the program. |
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