Skip to main content

Hot Topics in Electronic Discovery 2018: What Corporate and Outside Counsel Need to Know


Speaker(s): Ashish Prasad, David J. Lender, Gary A. Adler, Gilbert S. Keteltas, Hon. Andrew J. Peck (Ret.), Hon. David J. Waxse (Ret.), Hon. James C. Francis IV (Ret.), Hon. Lisa Margaret Smith, Jeffrey J. Fowler, John J. Rosenthal, Maura R. Grossman, Melissa R. Clark, Ronald J. Hedges, Steven C. Bennett, Tara S. Lawler, Thomas Y. Allman
Recorded on: Sep. 17, 2018
PLI Program #: 220643

Melissa Clark is a Partner with Milberg Tadler Phillips Grossman LLP.

Melissa has spent more than a decade litigating complex and class action financial, privacy, and consumer cases. Her recent representative cases include: representing municipalities in Fair Housing Act litigation against large financial institutions; representing consumers in data privacy cases against Facebook and Google; representing consumers in data breach class actions against Equifax and Wendy’s; representing investors in securities litigation against ARIAD Pharmaceuticals, Inc.; and representing a formerly publicly traded company in an accounting negligence case against PricewaterhouseCoopers. She is also a member of her firm’s E-Discovery Practice Group and is frequently responsible for spearheading discovery and ESI negotiations in complex cases.

Previously, Melissa worked at a boutique firm in New York, where she was part of a securities litigation team that recovered several multimillion-dollar settlements on behalf of investors. Her legal work experience also includes judicial externships with the Honorable Jerry Brown, Chief Judge of the United States Bankruptcy Court, Eastern District of Louisiana and the Honorable Jay C. Zainey of the United States District Court, Eastern District of Louisiana, as well as a clerkship for the San Francisco District Attorney’s Office. 

Melissa also has experience teaching legal research, writing, and management communication skills as a Senior Fellow at Tulane Law School and an Adjunct Writing Instructor at Tulane University’s Freeman School of Business.

She is an active member of the New York State Bar Association, where she serves on the Law, Youth & Citizenship Committee and Mock Trial subcommittee, and the American Bar Association, where she serves on the Professional Liability Committee as co-editor of the newsletter. 

Melissa received her B.S. from Florida State University in 2004 and her J.D. from Tulane University in 2007.


Ashish S. Prasad is the Vice President and General Counsel of eTERA Consulting, an electronic discovery, document review and technology consulting company headquartered in Washington, D.C. and with capabilities throughout the United States. 

Ashish is widely regarded as among the leading experts on discovery in the United States.  He has served, among other things, as Litigation Partner, Founder and Chair of the Mayer Brown LLP Electronic Discovery and Records Management Practice, Founder and CEO of Discovery Services LLC, Executive Editor of The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production (2004), Co-Editor in Chief of the Practicing Law Institute treatise Electronic Discovery Deskbook: Law and Practice (2009), and Adjunct Professor of Law at Northwestern University Law School.

In addition to having extensive experience in managing all aspects of discovery in litigation and investigations, and developing policies and procedures for electronic discovery, records management and legacy data management for corporations and law firms, Ashish has defended discovery compliance procedures before numerous courts and regulators.  Over the past decade, Ashish has authored over two dozen articles, and given over 100 legal education seminars, on topics of electronic discovery before judges, practicing lawyers and industry groups in the United States, Europe and Asia.

Ashish is active in a wide variety of charitable organizations related to children’s health and education, including serving as a Board Member of the U.S. Fund for UNICEF, Children’s Memorial Hospital of Chicago, and Pratham USA.  Ashish graduated from the University of Chicago Law School, where he was a Member of the Law Review, and the University of Michigan Honors College, where he graduated with High Honors and High Distinction.  He lives in the Chicago area with his wife and three children.


Dave Waxse is a retired United States Magistrate Judge from the United States District Court in Kansas City, Kansas. Judge Waxse received his B.A. degree from the University of Kansas in 1967 and his J.D. degree from Columbia University School of Law in 1970.  He became a Magistrate Judge in 1999 and retired in 2017.

He is a Past-President of the Kansas Bar Association. He is also a member of the American Bar Association (Judicial Division), Judge Waxse is past Chair of the National Conference of Federal Trial Judges of the Judicial Division of the ABA and past Chair of the Judicial Division of the ABA.    He also has been a co-chair of the Forensic Science in Criminal Justice Committee of the Judicial Division of the ABA.

He is also an Observer to The Sedona Conference Working Groups on Electronic Document Retention and Production (WG1)

In addition, prior to becoming a judge he was a member of the national boards of the American Civil Liberties Union, the Lawyer’s Committee for Civil Rights Under Law and the American Judicature Society.

 

 


David J. Lender is Co-Chair of Weil’s global Litigation Department and has more than 25 years of experience trying and litigating complex international commercial disputes in state and federal courts around the country, as well as in arbitration proceedings.

Mr. Lender’s multi-disciplinary practice encompasses matters involving RICO, patent, antitrust, consumer fraud, and contracts issues, among others, including in the class action context. He has tried numerous cases to verdict – many of which have resulted in his clients obtaining, or avoiding, hundreds of millions of dollars in damages. His longstanding clients include General Electric, Credit Suisse, ExxonMobil, Dow Chemical, Nuance Communications, WL Ross, Houghton Mifflin Harcourt, and eBay.

Mr. Lender is a recognized expert, author and frequent lecturer on electronic discovery issues. He is the co-author of the leading treatise on the subject, entitled Electronic Discovery: Law and Practice, originally published by Aspen Publishers in 2003, author of Privilege Issues in the Age of Electronic Discovery, originally published by BNA in 2008, and head of the Firm’s E-Discovery Task Force.

He is regularly recognized as a preeminent trial lawyer and litigator by leading industry publications. In 2018, Chambers USA again recognized him as among the top commercial litigators in New York. Clients in Chambers highlight his “keen intellect” and ability to “think through the evidence and trial strategy with clarity and efficiency,” and remark that he “consistently delivers winning results at extremely efficient cost.” Mr. Lender also was recognized in the 2018 edition of Benchmark Litigation as one of the Top 100 Trial Lawyers in America, and in the 2018 edition of BTI Consulting’s law firm industry report as a Client Service All-Star. In 2017, Legal 500 again named him among the leading trial lawyers nationwide.

Mr. Lender is on the Executive Board of New York Lawyers for the Public Interest and recently won a jury verdict in the Southern District of New York for a prisoner in a §1983 lawsuit.

Mr. Lender received his J.D. degree with High Honors, Order of the Coif from the Duke University School of Law in 1993, and his B.A. degree, cum laude, from Duke University in 1990. He currently serves on the Board of Visitors of Duke University School of Law.


Gary A. Adler focuses on commercial litigation and represents both domestic and foreign companies in complex commercial law suits involving, antitrust, intellectual property, commercial tort, product liability, product warranty, and franchise claims in proceedings before state and federal courts throughout the United States, and before both domestic and international regulatory agencies and commercial arbitration panels. Gary also provides guidance to firm clients on a variety of issues relating to electronic discovery.

Gary acts as outside general counsel to numerous companies, providing regulatory guidance on a broad range of commercial matters, and as regulatory counsel, providing guidance on compliance with both federal and state product safety laws and regulations. Gary also speaks and writes regularly on electronic discovery topics.


James C. Francis IV is a Distinguished Lecturer at the CUNY School of Law where he teaches Electronic Discovery, Civil Procedure, Evidence, Federal Courts, and Constitutional Torts.  From 1985 until 2017, he served as a United States Magistrate Judge in the Southern District of New York.  Judge Francis received his B.A. from Yale College in 1974, his juris doctor degree from the Yale Law School in 1978, and a masters degree in public policy from Harvard University, also in 1978.  Following graduation from law school, he clerked for the Honorable Robert L. Carter in the Southern District of New York.  He then joined the Civil Appeals and Law Reform Unit of the Legal Aid Society where he conducted impact litigation in the areas of housing and education and served as director of the Disability Rights Unit.  For more than a decade, Judge Francis taught Constitutional Torts as an Adjunct Professor at the Fordham University School of Law.

 In the field of electronic data and the law, Judge Francis is the author of Rowe Entertainment, Inc. v. William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002) (allocation of costs), Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162 (S.D.N.Y. 2004) (obligation to preserve ephemeral data), Treppel v. Biovail Corp, 233 F.R.D. 363 (S.D.N.Y. 2006) (standards for preservation orders), Rozell v. Ross-Holst, 2006 WL 163143  (relevance of e-mails to claim of computer hacking),  Treppel, 249 F.R.D. 111 (S.D.N.Y. 2008) (remedies for spoliation of electronically stored information), Richard Greene (Fine Paintings) v. McClendon, 262 F.R.D. 284 (S.D.N.Y. 2009) (consequences of destruction of electronically stored information), Orbit One Communications, Inc. v. Numerex Corp., 271 F.R.D. 429 (S.D.N.Y. 2010) (prerequisites for spoliation sanctions), Chen-Oster v. Goldman, Sachs & Co., 285 F.R.D. 294 (S.D.N.Y. 2012) (proportionality, sampling, and phased discovery),  US Bank NA v. PHL Variable Ins. Co. , 2012 WL 5395249 (S.D.N.Y. 2012) (proportionality, cost-shifting, and privilege review), Mastr Adjustable Rate Mortgages Trust 2006-OA2 v. UBS Real Estate Securities, Inc., 295 F.R.D. 77 (S.D.N.Y. 2013) (preservation trigger, spoliation sanctions), In re Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corp., 15 F. Supp. 3d 466 (S.D.N.Y. 2014) (extraterritorial reach of warrant for e-mail content), In re Application of U.S. for an Order Pursuant to 18 U.S.C. §§ 2703 (c) and 2703(d) Directing AT & T, Sprint/Nextel, T-Mobile, Metro PCS, and Verizon Wireless to Disclose Cell Tower Log Information, 42 F. Supp. 3d 511 (S.D.N.Y. 2014) (cell tower dump), Freedman v. Weatherford International, 2014 WL 4547039 (S.D.N.Y. 2014) (discovery on discovery), and Cat3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488 (S.D.N.Y. 2016) (sanctions under amended Rule 37(e)).   Judge Francis speaks frequently on electronic discovery and is a member of the Steering Committee of Sedona Conference Working Group 6 on International Electronic Information Management, Discovery and Disclosure; the Advisory Committee of the Georgetown Advanced E-Discovery Institute; and the Advisory Board of the Cardozo Data Law Initiative.


Jeffrey J. Fowler, Chair of O’Melveny’s Electronic Discovery and Document Retention Practice, is a Chambers–ranked litigation partner specializing in the high-stakes intersection of e-discovery, information management, cybersecurity, and privacy law. In an age when a company’s obligation to hand over millions of sensitive emails and documents in discovery is arguably its most common data security breach, clients entrust Jeff to protect them from the real-world risks associated with this increasingly specialized and intrusive exercise. A seasoned general litigator, Jeff’s clients engage him to serve as coordinating discovery counsel in complex, multi-front litigations and government investigations. In this role, Jeff is the sole discovery spokesperson for his clients, communicating a consistent message across a portfolio of litigation matters, coordinating discovery strategy from one case to the next, and ensuring compliance with national and international privacy laws. He is one of the country’s few practitioners with deep, hands-on experience litigating evidence spoliation and other e-discovery issues of first impression. Clients not only enlist Jeff to handle cases from the start; they tap him to parachute into existing matters, relying on his expertise to defend sanctions motions, quell accusations of discovery abuse, and provide behind-the-scenes strategic advice.

Jeff is a regular speaker on e-discovery and information technology issues, and over the past decade has given more than 60 presentations at conferences sponsored by the Practising Law Institute, Stafford Teleconferences, and LegalTech New York and West Coast, among others. He is also the co-author of the BNA publication “Preserving Electronically Stored Information: A Practical Approach.”

In addition to founding the E-Discovery and Document Retention practice group, Jeff is an active member of the Products Liability, Healthcare, and Data Security and Privacy practice groups. All told, Jeff has lent his expertise to more than 300 litigation matters, including consumer class actions, antitrust lawsuits and investigations, products liability matters, qui tam actions arising from the False Claims Act, labor class actions, and investigations by the DOJ, SEC, and various other state, national, and international authorities.


John J. Rosenthal is an antitrust and commercial litigation partner in the firm's Washington, D.C. office who represents clients around the globe in an array of complex antitrust and commercial litigation matters.

Mr. Rosenthal is also the chair of the firm's eDiscovery & Information Governance Practice Group, a full service e-discovery consulting operation.  Mr. Rosenthal is one of five individuals ranked domestically and globally by Chambers in the field of e-discovery.  With this background, he counsels a wide variety of companies on e-discovery, information governance, data security and privacy. 

He is a former member of the Steering Committee of Working Group 1 of the Sedona Conference on Best Practices for Electronic Discovery and Records Management.  Mr. Rosenthal is also an Advisory Board Member of the Georgetown University Law Center Continuing Legal Education E-Discovery Institute, where he is also on the faculty to the Institute and Academy programs.  He has served as an advisory board member to various e-discovery companies.


Ronald J. Hedges is a Senior Counsel with Dentons US LLP. He served as a United States Magistrate Judge in the District of New Jersey from 1986 to 2017. He is the chair of the Advisory Board of Digital Discovery & e-Evidence, a Bloomberg BNA publication, and is the principal author of the just-released third edition of Managing Discovery of Electronic Information: A Pocket Guide for Judges (Federal Judicial Center: 2017).


Steven C. Bennett is a partner at Scarola Zubatov Schaffzin PLLC in New York City, where he practices commercial litigation and arbitration.  Steve is former Co-Chair of the New York State Bar Association E-Discovery Committee.  He co-founded the Sedona Conference Working Group on International Discovery.  He has taught E-Discovery Law at: Hofstra Law School, New York Law School and Rutgers Law School.  Steve is on the Commercial Arbitration and Mediation panels of the American Arbitration Association.  B.A., Macalester College; J.D., New York University School of Law.


Tara S. Lawler’s practice focuses on eDiscovery, information management, and data privacy. She works with companies in all phases of electronic discovery and information management, including counseling on various preservation, collection, data processing, document review, and production-related strategies. Tara’s primary focus is on product liability and toxic tort cases, as well as commercial and white collar litigation in US federal and state court. She also counsels clients on legal, technical, and strategic issues involved in the manufacturing, healthcare, software, and investment industries.

As part of Morgan Lewis’s eData practice, Tara employs thoroughly documents and successful techniques for managing discovery.

Tara remains committed through all phases of litigation management, from legal holds and preservation, to negotiations with opposing counsel and discovery motion practice, to trial support. She partners with clients to preserve potentially relevant information, develop strategies for collecting hard copy and electronic materials, establish a document review process, and assess various document production options.

Along with her role on the eData team, Tara also handles pretrial case management, prepares company witnesses, conducts company interviews, and assists clients with government investigations and related civil litigation.


Thomas Y. Allman is a retired General Counsel who currently serves as an Adjunct Professor of Law at the University Of Cincinnati College Of Law.    Prior to retirement from BASF Corporation, he was an early advocate of what became current Rule 37(e) of the Federal Rules of Civil Procedure.   He is Chair Emeritus of Sedona Conference® Working Group on Electronic Production and Retention (“WG 1”) and the Lawyers for Civil Justice E-Discovery Committee and has published and spoken widely on the topic of e-discovery, corporate compliance and state e-discovery rulemaking.    


The chair of BakerHostetler’s Commercial Litigation practice team, Gil Keteltas is a trial lawyer with more than 25 years of experience litigating complex commercial, tort and government enforcement disputes on behalf of national and international corporations. Recognized by the National Law Journal as a 2016 Litigation Trailblazer for innovative trial advocacy, Gil’s experience spans practice areas and industries. He has advocated in courtrooms across the country on behalf of manufacturers, engineers, agricultural cooperatives and farmers, and has served as trial counsel in jury and bench trials. 

Gil’s national trial practice benefits from his experience in electronic discovery. He brings a practical approach to e-discovery that recognizes the importance of focused advocacy in addressing the burdens, costs and opportunities of discovery in modern complex litigation. Gil is national ranked in e-discovery by Chambers USA, has authored of numerous publications concerning litigation and e-discovery; is active in The Sedona Conference; served on the Advisory Board, Planning Committee and faculty of Georgetown Law’s Advanced E-Discovery Institute; and regularly teaches seminars on electronic discovery and electronic evidence.


The Honorable Andrew J. Peck served for 23 years as a United States Magistrate Judge for the Southern District of New York, including a term as Chief Magistrate Judge from 2004 to 2005. Before his appointment to the bench, Judge Peck was in private practice for 17 years, focusing on commercial and entertainment litigation, including copyright and trademark matters, with extensive trial experience.

At DLA Piper, Judge Peck advises on innovative and efficient solutions to the challenges of information management, both within and outside the litigation context. He frequently speaks at conferences concerning eDiscovery issues. Judge Peck also is available to serve as an arbitrator, mediator and Special Master.

Judge Peck is recognized internationally for bringing electronic discovery competency to the attention of both the judiciary and bar. Indeed, he is widely described as the first judge to tackle the subject of e-discovery head on, most notably in the influential 1995 decision Anti-Monopoly v. Hasbro, in which Judge Peck found that “it is black letter law that computerized data is discoverable if relevant.” Also among his legacy rulings is the 2011 employment class action Monique Da Silva Moore, et. al. v. Publicis Groupe & MSL Group, the first judicial decision approving the use of technology-assisted review. In March 2018, the New York Law Journal called Judge Peck “one of e-discovery’s most influential figures.”

Among the honors he has received, American Lawyer named him to its list of the Top 50 Innovators of the Last 50 Years as its Judicial E-Discovery Innovator.

 


The Honorable Lisa Margaret Smith is a United States Magistrate Judge for the Southern District of New York.  She sits in the Charles L. Brieant Federal Building and United States Courthouse in White Plains.  She was originally appointed in 1995 and she is currently serving her third term as a Magistrate Judge.  From 2006-2008 she served as Chief Magistrate Judge for the SDNY.

Prior to being appointed to the bench, Judge Smith was an Assistant United States Attorney in the Criminal Division of the United States Attorney's Office for the Southern District of New York (1987-1995).  Before becoming an AUSA she served as a Kings County (NY) Assistant District Attorney from 1980-1985, rising to Supervising Senior ADA in the Appeals Bureau, following service in several other bureaus.  From 1985-1986 Judge Smith was an Assistant Attorney General in the Appeals and Opinions Division of the New York State Department of Law, located in Albany.  She represented the State of New York on appeals in state and federal courts throughout New York, and she co-authored an amicus curiae brief on behalf of the National Association of State Attorneys General filed in the Supreme Court of the United States.  In 1986 Judge Smith re-joined the Kings County District Attorney’s Office as a Supervising Senior ADA.  She remained there until 1987, when she became an AUSA for the Southern District of New York.

Judge Smith earned her BA degree, with honors in political science, from Earlham College in Richmond, Indiana in 1977, and her JD degree from Duke University School of Law in Durham, North Carolina in 1980, where she was a member of the Moot Court Board.  She is a member of the Boards of Editors of the Federal Courts Law Review, an on-line and print journal of the Federal Magistrate Judges Association, and of the Federal Bar Council Quarterly.  Judge Smith has served in various positions on the Board of the Westchester Women's Bar Association, and currently serves as a Vice President and member of the Executive Committee.  She is active in the Federal Magistrate Judges Association, the Federal Bar Council, the Federal Bar Association, for which she has served as a Circuit Vice President, and JALBCA.  In 2014 Judge Smith was honored to receive the Judith S. Kaye Access to Justice Award from the Women's Bar Association of the State of New York.  In January of 2018 Judge Smith was also honored to receive the Kay Crawford Murray Award from the New York State Bar Association’s Committee on Women in the Law.

Judge Smith has been an Adjunct Professor at the Elisabeth Haub School of Law at Pace University (formerly Pace Law School) since 2006, where she has taught Evidence and Federal Courts, and co-taught Civil Procedure with Professor Michael B. Mushlin.  Judge Smith frequently lectures at CLE and Bar Association programs, with a particular focus on e-discovery and evidence.  She is a regular participant in events which educate children about the courts, including Take Your Children To Work Day, an annual program of the Westchester Women's Bar Association, as well as visits to the Courthouse by school and scout groups.

Judge Smith published an article, co-authored with Professor Mushlin, entitled "The Professor and the Judge: Introducing First-Year Students to the Law in Context."  The article appears in the Journal of Legal Education, Volume 63, number 3 (February 2014).  Judge Smith also wrote an article entitled "Top Ten Things You Probably Never Knew About Magistrate Judges," published in The Federal Lawyer in May, 2014.  She has also contributed numerous articles to the Federal Bar Council Quarterly.


Maura R. Grossman is a Research Professor in the David R. Cheriton School of Computer Science at the University of Waterloo, in Ontario, as well as an eDiscovery attorney and consultant in New York. Previously, Maura was of counsel at Wachtell, Lipton, Rosen & Katz, where for 17 years, she represented Fortune 100 companies and major financial services institutions in corporate and securities litigation, including civil actions and white collar criminal and regulatory investigations, and advised lawyers and clients on legal, technical, and strategic issues involving eDiscovery and information governance, both domestically and abroad.

Maura is a well-known and influential eDiscovery lawyer.  She is described in Who’s Who Litigation 2015 E-Discovery Analysis as “‘sensational’ according to her peers and . . . a ‘go-to’ in the area.”  Chambers & Partners USA 2015 Litigation:  E-Discovery described her as “the best-known person in the area of technology-assisted review; a superstar among superstars.”  Maura’s scholarly work on TAR, most notably, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, published in the Richmond Journal of Law and Technology in 2011, has been widely cited in case law, both in the U.S. and elsewhere.  Her longstanding contributions to eDiscovery technology and process, including her multiple patents relating to TAR, were featured in the February 2016 issue of The American Lawyer.

Since 2010, Maura has served as co-chair of the eDiscovery Working Group advising the New York State Unified Court System. She has been a court-appointed special master, neutral/mediator, and eDiscovery expert to the court in multiple high-profile federal cases. Maura has provided eDiscovery training to federal and state court judges, by invitation of the court, and has testified, on several occasions, before the Advisory Committee on the Federal Rules of Civil Procedure and the Advisory Committee on Evidence Rules, at their invitation. She is an adjunct professor at Columbia Law School and the Georgetown University Law Center, where she teaches courses on eDiscovery. Previously, Maura taught at Rutgers Law School–Newark and Pace Law School.

Since 2012, Maura has been a member of the Steering Committee of The Sedona Conference® Working Group 1 on Best Practices for Electronic Document Retention and Production. Since 2008, she has been involved in the National Institute of Standards and Technology’s Text Retrieval Conference (“TREC”); in 2010 and 2011, as coordinator of the Legal Track, and since 2015, as coordinator of the Total Recall Track. Maura serves on the Advisory Boards of Bloomberg BNA’s Digital Discovery & e-Evidence Report, the Georgetown University Law Center’s Advanced eDiscovery Institute, the Benjamin N. Cardozo School of Law’s Cardozo Data Law Initiative, and the Annual Arizona State University (“ASU”)-Arkfeld eDiscovery and Digital Evidence Conference.

Maura graduated with an A.B., magna cum laude, from Brown University. She earned M.A. and Ph.D. degrees in Clinical/School Psychology from the Gordon F. Derner Institute of Advanced Psychological Studies at Adelphi University, and a J.D., magna cum laude, Order of the Coif, from the Georgetown University Law Center. While at Georgetown, Maura served as Executive Notes and Comments Editor of the Georgetown Law Journal.