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Electronic Discovery Guidance 2012: What Corporate and Outside Counsel Need to Know


Speaker(s): Anne S. Jordan, Ashish Prasad, David J. Lender, David S. Cannon, Gary A. Adler, Hon. Andrew J. Peck (Ret.), Hon. David J. Waxse (Ret.), Jeffrey J. Fowler, John J. Rosenthal, Maura R. Grossman, Paul R. Gupta, Peggy A. Stulberg, Stan Gibson, Steven C. Bennett, Thomas Y. Allman
Recorded on: Sep. 24, 2012
PLI Program #: 37577

David Cannon is a member of Bingham’s Litigation Area. He focuses on intellectual property issues and also handles a variety of high-stakes commercial litigation. In the intellectual property arena, David helps technology companies in trade secret matters (often involving departed employees or vendors) as well as licensing issues and contract disputes. In the commercial arena, he has helped manufacturers, investors, insurers and project sponsors handle unfair competition, product defect, construction defect, insurance coverage and environmental contamination claims. David has significant experience with class actions and at trial, and has been recognized as a “Rising Star” by Super Lawyers Northern California.

Prior to joining Bingham, David served as a judicial extern for Chief Judge Marilyn Hall Patel of the Northern District of California. In 2007, he served as an assistant district attorney in the Misdemeanor Trial Unit for the city and county of San Francisco, trying six cases and winning every one.

Experience
Intellectual Property

  • MMCA v. Hewlett Packard — Trade secret claims relating to anti-counterfeiting investigations
  • Broadcom v. QUALCOMM — Antitrust, patent, contract and misrepresentation claims related to standard setting organizations
  • Applera v. Roche Molecular Systems — Licensing rights related to polymerase chain reaction technology Commercial
  • In re Oil Spill by Deepwater Horizon — Defense of claims against minority investor in BP’s Macondo oil well project
  • JPMorgan Chase Bank, N.A. — Representing JPMorgan Chase in various state and federal courts in consumer class actions involving unfair business practices and contract claims
  • Safeco Insurance Corporation — Negotiated significant coverage settlements related to clergy abuse claims
  • Davis v. Louisiana-Pacific — Defense jury verdicts on all claims in $100 million class action product defect action
  • Madison Marquette v. DPR — Obtained multimillion-dollar settlement on construction defect (water intrusion) claims
  • Saunders v. General Motors — Favorable settlement on unfair competition and false advertising class action claims

Awards & Honors
  • Super Lawyers, Northern California Rising Star (2009-2010)
  • Order of the Coif
  • Thurston Honor Society, University of California, Hastings College of the Law
  • Senior symposium editor, Hastings Law Journal


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."

 


Peggy Stulberg, Director of Litigation Technology at Bingham McCutchen, LLP, consults extensively with both attorneys and clients on matters of e-discovery. With 20-plus years in the field, she has been both a witness to, and an active participant in, the evolution of e-discovery and is known as an authority on its issues and best practices. Ms. Stulberg oversees a national staff of litigation support and e-discovery professionals, and is responsible for creating and implementing litigation and e-discovery technology policies and procedures. 

Prior to Bingham, Ms. Stulberg developed and managed litigation support departments at several major law firms including Wachtell, Lipton and Morgan Lewis, and for two years was the business manager for a service provider of e-discovery products and services.

Ms. Stulberg is a member of the Sedona Conference Working Group on Electronic Document Retention and Production, is a frequent e-discovery panelist for various e-discovery organizations, and was a founding member of the East Coast Association of Litigation Support Managers. She has been a panelist on the PLI "What Corporate and Outside Counsel need to Know" since 2010, and is a member of the Planning Committee for Georgetown Law Center's eDiscovery Practice Support Distance Learning Program.


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, as well as in arbitrations.

Mr. Lender’s practice encompasses matters involving RICO, patent, antitrust, consumer fraud, and contracts issues, among others, including in the class action context. He has tried more than 20 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, Eli Lilly, ExxonMobil, Dow Chemical, Nuance Communications, WL Ross, Houghton Mifflin Harcourt, and eBay.

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

He is regularly recognized as a preeminent trial lawyer and litigator by leading industry publications, including Chambers USA, Benchmark Litigation, Legal 500, and The National Law Journal.

Mr. Lender is on the Executive Board of New York Lawyers for the Public Interest and regularly works with NYLPI on a wide range of pro bono projects, including on behalf of special education students, the disabled, and veterans.

Mr. Lender received his J.D. degree with High Honors, Order of the Coif from 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.


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.


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.


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.    


As stated in Chambers USA: America's Leading Lawyers for Business, Paul "litigates cases involving hi-tech electronic, software and internet-related patents." Chambers USA added that he is “an expert in cybersecurity.” His clients include industry leaders in e-commerce, IT, financial services and telecom.

Paul, according to Chambers USA, is "a zealous advocate for his clients," "praised as a great negotiator” and “a strong strategist,” “renowned for his work in the technology arena" and "extraordinarily accessible." He is also listed as a notable lawyer in Super Lawyers and in IAM’s "World's Leading Patent Practitioners."

He regularly handles intellectual property litigation (including patent, copyright, trademark and trade secret cases), as well as commercial litigation (including cybersecurity, licensing, outsourcing and indemnity cases).

He is currently or has recently been lead counsel in Federal District Court actions and arbitrations pending in California, Delaware, Illinois, Kansas, Massachusetts, New Jersey, New York, Tennessee, Texas and Virginia. He also counsels clients throughout the United States on a variety of technology law matters.

Further biographical information about Paul can be found in Who’s Who in the World.


Ms. Jordan is President of Jordan Associates, a firm that provides arbitration and mediation services and consults with corporations looking to deliver legal services and manage litigation and compliance risk more strategically.  Ms. Jordan serves on the AAA’s Commercial and Employment Panels, the International Institute for Conflict Prevention & Resolution’s (CPR) Panel of Distinguished Neutrals, and is included on the Northern District of Illinois’s list of mediators available for the Lanham Act Mediation Program.   In addition to her work with Jordan Associates, Ms. Jordan represents multi-national corporations as well as start-ups on a variety of transactional matters as Of Counsel to the Chicago firm Mandell Menkes LLC. 

From 1999 until 2004, Ms. Jordan served as Senior Vice President, General Counsel and Secretary of PeopleSoft, Inc., the world's second largest provider of enterprise application software with annual revenues of approximately $ 2.8 billion.  Prior to joining PeopleSoft, Ms. Jordan was Vice President and General Counsel for Sega of America, Inc.  Before that she was a partner in the Palo Alto firm, Carr & Ferrell, concentrating on litigation, licensing and intellectual property matters.

She has also held positions as Vice President and General Counsel for Worlds of Wonder, Inc., a manufacturer of electronic toys and games, and Assistant General Counsel for Dole Foods, Inc., a $2 billion food processing and real estate development corporation, and as Corporate Counsel with Beatrice Companies, Inc. and Gould Inc., both Fortune 500 companies.

Throughout her 30+ year legal career, Ms. Jordan has focused on commercial, intellectual property and technology law, representing clients with significant domestic and international patent, copyright and trademark portfolios.  She has substantial experience drafting and negotiating complex commercial transactions, including M&A, joint ventures, technology licenses, outsourcing agreements and distribution deals.  Ms. Jordan has also been involved in litigating numerous commercial and intellectual property disputes in both state and federal courts, including disputes related to intellectual property infringement, failed software development and failed implementations, breaches of contract and technology licenses, and agent and distributor terminations. 

Ms. Jordan is a frequent speaker and author on technology, intellectual property and commercial topics and has been published in the National Law Journal.  She is a contributor to “Winning Legal Strategies for Software Companies: Leading Lawyers on Protecting IP, Negotiating Contracts, and Creating Legal Game Plans.”  She chaired the ABA Dispute Resolution Section’s Task Force on Early Dispute Resolution from 2014 - 2017.  Ms. Jordan has served multiple terms on the International Trademark Association’s (INTA) Board of Directors, was on the American Law Institute’s Advisory Committee for the Restatement of Unfair Competition, and was on the Trademark Review Commission which drafted the Trademark Law Revision Act of 1988, the first major revision to U.S. trademark law since 1946.  She also chaired INTA’s Brief Amicus Committee for several years, served on the Executive Committee of the California State Bar Intellectual Property Section, and was a member of an ABA Task Force on Security Interests in Intellectual Property. 

Ms. Jordan received a J.D. from DePaul University College of Law and a B.A. from Northwestern University.


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.

 


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.