Program
Schedule
I. Introduction to Program
II. Overview
*Overview of the problem--how is e-discovery and electronic evidence different from
regular discovery?
*Overview of program
III. The New Federal Rules of Civil Procedure on Discovery of Electronically
Stored Evidence, the Duty to Preserve Electronic Evidence and Related Considerations
* Impact of new amendments on initial automatic disclosures
* Rule 16 early discussion by parties, and involvement of the Court in this process
* Where is electronic evidence to be found?
* "Reasonably accessible" v. "not reasonably accessible" ESI
* The various potential forms of production, and considerations related to
“metadata”
* Source and scope of the duty to preserve electronic evidence
* When is that preservation duty triggered?
* The “safe harbor” for inadvertent document destruction
*What are litigation holds, and how to implement them
*E-Discovery as the One-Edged Sword: David vs. Goliath
*Privilege and waiver considerations
*Genesis of the new rules and existing case law
*The likely impact of the federal ESI provisions on state court
matters and administrative proceedings
Questions and Answers
IV. Case Study: Responding to E-Discovery in High
Stakes Higher Education Litigation--A Hypothetical and Discussion of Issues Presented and
Practical Considerations
* Analysis of issues and problems of electronic evidence from inception of the
dispute through trial, including sample electronic discovery/preservation of evidence
request from plaintiff's counsel.
* How to identify pertinent electronic information at the onset of a dispute, and how to
identify the holders and the location of that information.
* Who conducts the search?
* How to communicate with affected personnel? Do we seize the computers?
* How to document the search (and related Rule 30(b)(6) considerations).
* What triggers the duty to preserve? Preservation vs. overreaction
* Privilege and waiver issues
* Mitigation measures
* Privacy considerations
* Taking steps to preserve evidence prospectively when complainant remains employed at
your institution (including the retention of drafts).
* Preparing for the inevitable – creation and implementation of a plan, preparing and
planning with your administration, faculty and information technology personnel
V. Best Practices
* Implications for institutional records retention policies
* Limiting the use of e-mail for significant institutional decisions
* Avoiding bad substantive decisions based on the fear of litigation and e-discovery
obligationss
Questions and Answers
VI. Conclusion and Final Thoughts
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