E-Discovery 2015: Best Practices and Ethical Implications

Codes of professional responsibility, court rules, and judicial expectations continue to evolve in relation to electronic discovery. Counsel are expected to have knowledge of relevant technology to competently serve their litigation clients. What skills and knowledge are actually required to meet these expectations and reduce the risk of poorly executed discovery or court sanctions?  Our experienced faculty brings the perspectives of both the bench and the practitioner to the intersection of technology and ethics, and court expectations and business realities in the world of electronic information and eDiscovery. We will examine the need for the appropriate expertise to reduce cost and risk in the eDiscovery lifecycle and provide practical insight into procedures and tools that promote accuracy, reduce cost, and provide defensibility.

Live Program: $229 Member, $329 Nonmember
Small Law Firm: $119 Member, $219 Nonmember (The Small Law Firm discounted rate cannot be combined with other discounts.)


Discounts will be granted to attorneys working for government agencies, public interest groups, full-time students and full-time academics.

Mark A. Berman, Ganfer & Shore, LLP

Ignatius Grande, Hughes Hubbard & Reed LLP

Marilyn C. Kunstler, Boies, Schiller & Flexner LLP

Hon. Frank Maas, Chief United States Magistrate Judge, United States District Court, SDNY

Brendan M. Schulman, Kramer Levin Naftalis & Frankel LLP

Hon. Lisa M. Smith, United States Magistrate Judge, United States District Court, SDNY

6:00-7:15 p.m. Ethical Considerations in the Use of E-Discovery Technologies

E-Discovery has now become a complex set of procedures, often calling for various technologies to replace what was previously a fully human effort. Understanding quality and thoroughness of a production becomes more challenging. This session addresses some of the challenges that counsel may face, including:

• The professional rules that may be implicated, including New York Rules of Professional Practice 1.1, 1.4, 3.3, 3.4, 4.1, and 5.3.
• How does counsel know that they have properly fulfilled their professional obligations?
• What knowledge do they require?
• What are the risks and benefits of using different forms of technology-assisted review and what ethical issues do these approaches present for counsel?

Moderator:Julia L. Brickell
Faculty: Mark A. Berman, Hon. Frank Maas, Brendan M. Schulman, Hon. Lisa Smith

7:15 – 7:30 p.m.          Break

7:30 – 8:20 p.m.          The Ethics of Advocacy in the E-Discovery Sphere: What Do Competence, Candor, and Fairness Require in Practice?

What counsel is expected and/or obligated to know, do, and disclose in discovery is a worthy question. In this discussion, the panel considers what FRCP 26 and the ethical obligations of competence, candor, and fairness under New York Rules of Professional Practice 1.1, 3.3, 3.4, 5.3 and 8.4 require of lawyers in eDiscovery, including:

• Does lack of knowledge allay lawyers’ ethical obligations?
• Should counsel really have to explain precision and recall to a judge?
• What does the recent interim opinion of the State Bar of California Standing Committee on Professionalism Responsibility and Conduct suggest are unacceptable mistakes of counsel in the sphere of electronic discovery?
• What light do recent cases and the SDNY pilot program shed on the ethical boundaries among cooperation, proportionality, and zealous advocacy, protection of privilege and the call for transparency?

Moderator: Marilyn C. Kuntsler
Faculty: Mark A. Berman, Ignatius Grande, Hon. Frank Maas, Brendan M. Schulman, Hon. Lisa Smith

8:20- 8:45 p.m.           On the Horizon: Pending Changes to FRCP 1, 26, and 37

The panel considers how pending changes to the Federal Rules of Civil Procedure may impact dynamics in E-Discovery, including:

• Does the increased emphasis on proportionality affect required competencies?
• With whom do responsibilities lie?
• If the proposed changes to Federal Rule of Civil Procedure 37 are approved, how may the practice of E-Discovery    be impacted?

Moderator: Julia L. Brickell
Faculty: Ignatius Grande, Marilyn C. Kuntsler, Hon. Frank Maas, Hon. Lisa Smith

8:45- 9:00 p.m.            Q&A

Sponsoring Association Committees: E-Discovery Working Group, George Foulke Du Pont, Chair; Federal Courts, Ira Feinberg, Chair & In-House/Outside Counsel Litigation Group, Beth Kaufman and Jack Lerner, Co-Chairs

Sponsorship Opportunities are Available! Please Contact: 
Ann Rappleye, Director, City Bar Center for CLE | (212) 382-6606 | ARappleye@nycbar.org or
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Darianne De Leon, Program & Sponsorship Coordinator, City Bar Center for CLE | (212) 382-6731 | ddeleon@nycbar.org