(Webcast) eDiscovery and Ethics in the Datasphere

Monday, November 14, 2022 | 12:00 pm – 1:30 pm

• Description
• Faculty
• Agenda
• CLE Credit
• Sponsors

• Discovery of electronically stored information (“ESI”) involves a complex intertwining of practice, process and technology that present technical, professional and ethical challenges. Clients are rapidly embracing new collaboration, communication and analytics tools, while decisional precedent and rule making strive to keep up. This program will discuss emerging issues and the implications of recent case law, at the intersection of discovery practice, the rules of professional conduct, the Federal Rules of Civil Procedure and Federal Rules of Evidence.

  Topics will include:

  • Proportionality, cooperation, and ESI protocols.
  • Discovery disruptors such as AI, outsourcing, collaboration tools and the internet of things.
  • The convergence of metrics, analytics, and ethics.
  • The continuing decentralization of data sources, the changing nature of electronic information, and what constitutes a document.
  • Expectations and obligations of lawyers under rules of civil procedure and professional conduct, including the obligation of technological competence.
  • The changes in rules and practice we may see – or may want to see – in the short to medium term.

  Program Fee:
  $129 for Members | $229 for Nonmembers
  Small Law Firm Members: $79

• Moderator:

  Julia Brickell
  Faculty, Columbia University, former General Counsel, H5

  Faculty:

  Steven Berrent
  Managing Director, Deloitte Legal Business Services

  H. Christopher Boehning
  Partner, Paul, Weiss, Rifkind, Wharton & Garrison

  The Honorable Andrew J. Peck
  Senior Counsel, DLA Piper

  Allison Stanton
  Director and Associate General Counsel, eDiscovery & Information Governance at Meta

• 12:00 pm – 12:05 pm
  Welcome and Introductions

  12:05 pm – 12:10 pm
  Where are we? A Brief Evolution of eDiscovery
  From the series of Zubulake cases to preservation (or not) of ephemeral messaging, ediscovery and interpretations of ethical obligations has evolved over two decades as lawyers and courts endeavor to keep pace with changing technology
  Julia L. Brickell

  12:10 pm – 12:40 pm
  The Data Landscape Today
  Decentralization of data sources continues to create practical and ethical quandaries for the legal practitioner in preservation, retrieval, and production. Collaboration tools and the Internet of Things add to the plethora of data sources of which the practitioner should be aware under rules of court and professional responsibility. As sources and forms of electronic information evolve, so to do the steps to be taken by competent counsel to maintain awareness, align with the right expertise, and ensure fairness and candor under the rules. As the practitioner encounters new forms of information, practical questions emerge that are as fundamental as what constitutes a document or how to preserve information and retrieve and produce it as it is kept in the ordinary course of business. Recent cases grapple with these topics, not always with consistent results.
  Panel

  12:40 pm – 1:00 pm
  Do Concepts of Proportionality and Cooperation Assist? What is the Role of ESI Protocols and FRE 502 Orders?
  Conceptual and practical frameworks for the competent practitioner to consider (and raise with clients to meet ethical obligations to communicate and keep fees reasonable) include proportionality in discovery requests and responses. Highlighted in the rules, proportionality is context-driven and consideration should be given to application, articulation, and timing. Similarly, the pros and cons of ESI protocols in practice and in view of recent case law and the advantages of FRE 502 orders warrant communication and attention.
  Panel

  1:00 pm – 1:25 pm
  The Interplay of Analytics, Measurement, and Ethics
  Search and retrieval capabilities, tools that offer data analytics, outsource vendors, in-house and in-firm teams continue to drive changes in discovery approaches while raising considerations under ethical rules of competence, communication, fees, confidentiality, fairness, candor, truthfulness, and supervision. Balancing technical knowledge, budgets, and risk tolerances demands heightened levels of insight, foresight, and communication.
  Panel

  1:25 pm – 1:30 pm
  Q&A Session and Close
  Panel

• New York: 1.5 Ethics
  New Jersey: 1.7 Professional Responsibility
  California: 1.5 Professional Responsibility
  Pennsylvania: 1.0 Professional Responsibility
  Connecticut: Available to Licensed Attorneys

• Sponsoring Association Committee:
  Litigation, Seth D. Allen, Chair

  Sponsoring Organization:
  Small Law Firm Center

  Sponsorship Opportunities are Available! Please Contact:
  Yelena Balashchenko, Manager, Business Development & Sponsorships | (212) 382-6608 | ybalashchenko@nycbar.org