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Hot Topics in Electronic Discovery 2019: What Corporate and Outside Counsel Need to Know


Speaker(s): Ashish Prasad, Christopher C. Costello, Gary A. Adler, Gilbert S. Keteltas, Hon. James C. Francis IV (Ret.), Hon. Lisa Margaret Smith, Hon. Stewart D. Aaron, Jeffrey J. Fowler, John J. Rosenthal, Lori L. Pines, Melissa Ryan Clark, Paul Serritella, Stan Gibson, Steven C. Bennett, Tess Blair
Recorded on: Sep. 18, 2019
PLI Program #: 247780

Stan Gibson is an experienced trial lawyer, who has focused on high-stakes cases involving complicated technology and mission-critical cases in the entertainment industry. He is the Chairman of JMBM's Patent Litigation Group and the publisher of the Patent Lawyer Blog. The media frequently calls upon Stan to explain the significance of court decisions, and he has been quoted by the Wall Street Journal, Financial Times, Forbes, Bloomberg BusinessWeek, New York Times, Los Angeles Times, Thompson Reuters, American Lawyer, National Law Journal, ABA Journal, Los Angeles Daily Journal and other publications.

Stan obtained a $16.7 million arbitration award after a six-month arbitration that involved the engineering and design of direct broadcast satellites and satellite launch vehicles.

Stan tried to a jury Intraspace v. Lockheed Martin/Loral in San Jose and obtained a $8.5 million verdict for our client. With an aptitude for technology and patents, Stan went on to handle complex cases involving technology in the fields of LCDs, semiconductors, computerized telescopes, automotive design, Internet search engines, exercise equipment and medical devices, among others.

Stan was one of the principal trial lawyers in Medtronic v. Michelson, in which his client Dr. Gary Michelson won $570 million after a multi-month jury trial in Memphis, Tennessee. The case was resolved as part of a $1.35 billion dollar acquisition of the Michelson patent portfolio, which the Los Angeles Times reported as the largest acquisition of patents in history.

"From the time I was seven years old, I knew I wanted to be a trial attorney. That’s when I watched my father cross examine the plaintiff in a maritime trial. In law school, I took advantage of the third year practice rule to work on trials at the District Attorney's office, even spending my spring break on misdemeanor bench trials, with multiple trials each day. That experience allowed me to second chair trials as a junior associate at the firm and then first chair many trials as a partner. My more than 25 trials include those on the list below."

 


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.


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.


Hon. Stewart D. Aaron was sworn in as a United States Magistrate Judge in the United States District Court for the Southern District of New York on December 1, 2017.  Before joining the Court, he was a partner at Arnold & Porter LLP, where he served as the Managing Partner of the New York Office (2012-2015) and the Administrative Partner of the New York Office (2005-2012).  Judge Aaron had litigated commercial and civil rights cases in federal and state court, as well as other tribunals, for over 30 years. He is a past President of the New York County Lawyers Association, and currently serves as President of the New York American Inn of Court. Judge Aaron also has served on the Board of Directors of the Legal Aid Society. He was graduated summa cum laude from Syracuse University College of Law, and received his Bachelor of Science from Cornell University.


James C. Francis IV is a Distinguished Lecturer at CUNY Law School, where he teaches Civil Procedure, Federal Courts, Constitutional Torts, and Electronic Discovery.  Previously, he was a United States Magistrate Judge in the Southern District of New York from 1985 to 2017 and served as Chief Magistrate Judge from 1998 to 2000.  Judge Francis graduated summa cum laude from Yale College in 1974, where he was a member of Phi Beta Kappa.  He received his juris doctor degree from the Yale Law School in 1978 and a masters degree in public policy from the John F. Kennedy School of Government at Harvard University in the same year.  Following graduation from law school, Judge Francis 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 until his appointment to the bench.  From 2003 until 2017, Judge Francis was an Adjunct Professor at the Fordham University School of Law.    He has served on the Legal Assistance, Federal Courts, Disability Rights, and Professional Responsibility Committees of the New York City Bar Association and the Federal Judiciary Committee of the New York State Bar Association.  Judge Francis lectures frequently on electronic discovery, employment litigation, constitutional torts, legal ethics, and pretrial practice.  


Jeffrey Fowler is a litigation partner of O’Melveny & Myers and chair of the Firm’s Electronic Discovery and Document Retention Practice Group.  Founded by Jeff in 2005, the group comprises several full-time associates, 35 staff attorneys, and 12 technologists--all dedicated to handling e-discovery issues.  Jeff serves as eDiscovery counsel for a broad spectrum of clients and appears as the lead lawyer responsible for e-discovery issues in complex litigations and investigations, including many not otherwise handled by his firm.  Jeff has argued both sides of several evidence spoliation matters and other e-discovery issues of first impression.  He is a regular speaker at PLI and is the coauthor of the BNA practice guide, Preserving Electronic Information: A Practical Approach.


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.


Melissa Ryan Clark has a broad range of complex and class action litigation experience, having spent more than a decade litigating privacy, financial, and consumer cases.

Melissa has represented consumers and businesses in data privacy, data breach, and consumer fraud cases against data and tech giants like Facebook, Inc., Google, Apple, Inc., Equifax Inc., and RCN Corp., as well as corporations in other industries, such as Wendy’s International, LLC.

She also has a strong background in securities fraud litigation and has represented plaintiffs in class actions against publicly traded companies like Virgin Mobile USA and ARIAD Pharmaceuticals, Inc., successfully recovering millions of dollars on behalf of investors.

In addition to her class action work, Melissa has litigated complex, commercial cases. She has represented municipalities in Fair Housing Act litigation against large financial institutions, including Bank of America, HSBC, and Wells Fargo. She has also successfully represented a formerly public company in an accounting negligence case against PricewaterhouseCoopers and an investment fund in an action against Fidelity National Title Insurance Company.

Melissa 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. She is attuned to the latest developments in the e-discovery field and has successfully worked with opposing counsel to negotiate the inclusion of front-line best practices in early ESI protocols and protective orders–such as the inclusion of ESI disclosures; the designation of ESI liaisons; the development of comprehensive search, custodian, and search validation protocols that encourage early, transparent, and collaborative discussions regarding e-discovery; and 502(d) orders that streamline complex discovery and avoid disputes.

In addition to her legal work, Melissa has experience teaching legal research, writing, and management communication skills. She has held positions as an Adjunct Writing Instructor at Tulane University’s Freeman School of Business and a Legal Research & Writing Senior Fellow at Tulane University Law School.

Melissa received her B.S. from Florida State University and her J.D. from Tulane University Law School. She also attended University of California, Berkeley, School of Law for a semester, where she received High Honors in Securities & Class Action Litigation and was a member of the California Law Review.


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.


Tess Blair is a litigator and legal entrepreneur who has practiced at the intersection of law, technology, and design for more than two decades. Tess is the founder and leader of Morgan Lewis’s eData practice, a data-driven practice that combines great lawyering with technology and design to enhance the delivery of legal services.

A practicing litigator, Tess serves as national discovery counsel to some of the world’s largest organizations. She counsels a host of Fortune 500 companies, conducting risk assessments and guiding her clients as they develop internal information governance policies and controls to address privacy, security, retention, and disposition of information and data. She also helps her clients develop defensible models for responding to requests for information in litigation or investigations and marshals resources for such contingencies to assist her clients in satisfying their discovery obligations.

For clients in litigation, Tess frequently serves as discovery counsel alongside her client’s trial counsel, as a core member of the litigation team, develops, and executes all aspects of the client’s discovery strategy as well as optimizing her client’s evidence gathering, analysis, and presentation. Her role as discovery counsel includes negotiating the scope and conduct of discovery, developing ESI protocols, protective orders, and specialized procedures for cross-border transfer of data subject to privacy laws. She takes and defends record custodian and discovery-related depositions, handles all discovery-related motion practice, and drives all managed review, analysis, and production.

As leader of eData, Tess works with her team, her colleagues, and clients to design and develop tools and techniques to improve the delivery of legal services. Tess built the eData practice into a multidisciplinary team of lawyers, technologists, business professionals, designers, developers, and data scientists who design and deliver legal products and services to enhance the Morgan Lewis client experience across the firm’s practices, industries, and disciplines. The eData team uses process design, automation, UX, product design, application development, machine learning, and augmented intelligence tools to develop technology, process, and service solutions built to meet our clients’ needs. A Six Sigma Green Belt, Tess invests heavily in training the entire eData team in Legal Project Management, Six Sigma and Legal Design.

Tess lectures regularly on civil procedure, eDiscovery, and data privacy—including cross-border discovery and data minimization—and writes frequently on eDiscovery, information governance, and data privacy for a variety of legal publications. She is the lead author of the eData Deskbook, currently in its third edition. Tess also serves as Special Discovery Master to the Eastern District of Pennsylvania. She has been Chambers ranked nationally for nine years and globally for seven years in electronic discovery. In 2019, Tess was named one of the Top Ten Most Innovative Lawyers in North America by the Financial Times. Tess holds a Master of Professional Studies on Law Firm Management and studied industrial design at the Philadelphia College of Art before completing an undergraduate degree in philosophy at Ursinus College.  Bringing entrepreneurial experience to her clients, Tess started and operated a small business before entering law school.


Chris is a senior eDiscovery attorney who concentrates his practice on eDiscovery, privacy and data security, and complex commercial matters, including residential and commercial mortgage-backed securities, contractual disputes, real estate transactions, as well as securities fraud and white collar actions.

Services

  • Litigation, eDiscovery & Information Governance, Privacy & Data Security, Complex Commercial Litigation, Class Actions

Admissions

  • New York

Court Admissions

  • Eastern District of New York, Southern District of New York, USCA – 2nd Circuit

Education

  • Georgetown University, JD, 2004
  • St. John’s University, BA, 1995

Chris Costello has represented a wide variety of clients in complex commercial litigation, including Fortune 500 companies, major financial institutions, real estate investment funds, inventors of environmentally friendly technologies, among others. He has successfully resolved cases involving commercial and residential mortgagebacked securities, bankruptcy matters, as well as day-to-day litigation in federal and state courts. Chris has successfully argued before the United States Court of Appeals for the Second Circuit and the Appellate Division of the New York Supreme Court.

Additionally, Chris advises clients on international data privacy, cross-border discovery issues, and information governance (including legacy retirement, record retention, and litigation readiness programs). Chris has significant experience prosecuting and defending spoliation claims, and was involved in the efforts that culminated in the 2015 Amendments to the Federal Rules of Civil Procedure.

Chris works with clients to develop records management programs, to review and revise their existing computer use and privacy policies, and to assist clients with efforts to locate, identify, collect, process, and review electronically stored information for use in internal investigations and in connection with ongoing litigation. He has also a Certified Information Privacy Professional in Europe. His depth of experience working with both technical experts and other lawyers allows Chris to communicate with all parties and ensures that clients’ efforts are both efficient and cost effective.


Paul Serritella is a Director and Senior Counsel at the Royal Bank of Canada.  He has been at the bank since 2016.  In this capacity, he oversees critical civil and regulatory matters, with a particular focus on complex civil litigation.  He has also served on the Bank’s Legal Artificial Intelligence Working Group and Legal Digital Team.

Prior to moving to RBC, Mr. Serritella was counsel at Latham & Watkins in New York, where he represented numerous large corporate clients in complex litigation matters.  He clerked for the Honorable Colleen McMahon (S.D.N.Y.) from 2005-2006.  

He speaks frequently on panels regarding current topics in litigation and ediscovery issues generally.


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, hospitality companies, agricultural cooperatives and farmers, and has served as trial counsel in jury and bench trials. 

Gil also is experienced in coordinating and leading the defense of multi-jurisdictional, multi-party disputes – including disputes involving a mix of government and private plaintiffs – and in developing and implementing litigation risk-reduction strategies before litigation is filed.

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 ranked by Chambers USA in E-Discovery and clients and peers recognize Gil as “a notable electronic discovery expert with significant trial experience” (Chambers USA 2018).

Gil is the author of numerous publications concerning e-discovery, has been active in The Sedona Conference, has served on the Advisory Board, Planning Committee and Faculty of Georgetown Law's Advanced E-Discovery Institute and has served on the faculty of PLI on a range of electronic discovery topics.


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.


Lori L. Pines is a Litigation partner in Weil’s New York office, where she heads the Firm’s False Claims Act/Qui Tam practice and is a member of the Complex Commercial Litigation group. Ms. Pines has played a central role in managing the defense of some of the nation’s most complex and public disputes, including one of the largest class action/multi-district litigation proceedings.

Ms. Pines has litigated cases spanning a broad range of substantive areas on behalf of major clients in numerous industries, including life sciences, managed care, telecommunications, energy, commercial power, professional services, publishing, and manufacturing. In addition, Ms. Pines has substantial experience representing clients in cases involving the False Claims Act. Over the course of her career, Ms. Pines has been involved in a number of lengthy, complex jury trials in both state and federal court. She has also handled numerous government agency investigations and employment disputes, as well as all aspects of many important settlements.

Ms. Pines also has extensive arbitration experience. She has handled many disputes before the American Arbitration Association (“AAA”), and played a significant role in coordinating the defense of one of the largest International Chamber of Commerce (“ICC”) arbitrations to date. Ms. Pines’ advice regarding how to streamline arbitration proceedings to make them more efficient and effective has been sought, and published, by the AAA.

Recent notable experience includes:

  • Defending UnitedHealth Group in one of the first cases brought under the New York State FCA;
  • Representing the General Motors estate in an FCA suit brought against Allison Engine;
  • Defending Schindler Elevator in a qui tam action under the federal FCA; and
  • Serving as co-lead counsel for UnitedHealth in a major multi-district that challenged fundamental notions concerning the delivery of managed care in the US, and which sought billions of dollars in damages. Plaintiffs, purporting to represent a putative class of tens of millions of patient-subscribers, claimed that United misrepresented the scope of its health care coverage and interfered in the patient-physician relationship by discouraging physicians from imparting complete and accurate information to patient-subscribers. Working with defense counsel, Weil defeated plaintiffs’ motion to certify a class and ultimately obtained a very favorable settlement.
Ms. Pines has taught CLE-accredited classes on discovery techniques, document production, trial-preparation, and witness examination. She has also published numerous articles and book chapters on topics such as False Claims Act litigation, MDL strategies, expert retention, corporate depositions, and pleadings in complex cases, and she serves as editor of the Firm’s FCA Watch newsletter. She is a member of the American Bar Association and the Association of the Bar of the City of New York, where she serves as the Chair of the Committee on Women in the Legal Profession for a three-year term that began in September of 2013. She is also a member of the University of Texas School of Law’s Consortium for Advancing Women Lawyers. Ms. Pines is the Chair of the Firm's Litigation Training Program, a member of the Firm’s Women Attorney Task Force, a member of the Firm's Professional Development Committee, a Career Development Partner and an official Mentor to associates. She is also an Advisory Committee Member of the Sloane Hospital for Women at New York Presbyterian Hospital/Columbia University Medical Center.

Ms. Pines received her J.D. from New York University School of Law, where she was a teaching assistant in the Lawyering Program and a member of the Moot Court Editorial Board. She has a Masters in Public Affairs from Princeton University's Woodrow Wilson School of Public and International Affairs, and a B.A. in Biology from Harvard College, where she graduated with Honors.