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Electronic Discovery Institute 2015: What Corporate and Outside Counsel Need to Know

Speaker(s): Anne S. Jordan, Ashish Prasad, David J. Lender, Gilbert S. Keteltas, Hon. David J. Waxse (Ret.), Hon. Frank Maas, Jeffrey J. Fowler, John J. Rosenthal, Maura R. Grossman, Stanley M. Gibson, Steven C. Bennett, Tara S. Lawler, Thomas Y. Allman
Recorded on: Sep. 2, 2015
PLI Program #: 59004

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.

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 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 Management 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 and privacy. 

He is a Member of the Steering Committee of Working Group 1 of the Sedona Conference on Best Practices for Electronic Discovery and Records Management.  Mr. Rosenthal also is 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.

Stan Gibson is an experienced trial lawyer, who has focused on high-stakes cases involving complicated technology and bet-the-company 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 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.

Representative Experience:

  • Lead counsel in a patent infringement case against client Sealant Systems International ("SSI"). TEK Corporation filed a patent infringement action against SSI in the Southern District of New York. SSI filed its own action for declaratory judgment against TEK in the Northern District of California and successfully dismissed the New York action for lack of personal jurisdiction. SSI's sister company, Accessories Marketing, Inc. ("AMI"), also asserted a patent against TEK in the California action. On summary judgment, SSI invalidated TEK's patent based on prior art. AMI proceeded to trial on its patent and a jury awarded AMI damages based on a 7% royalty.
  • Lead trial counsel for Innolux in patent case filed by Semiconductor Energy Laboratories ("SEL") alleging infringement of six patents pertaining to fabrication of LCD Modules used in flat screen TVs and computer monitors, among others. Innolux filed seven petitions for Inter Partes Review ("IPR") in the United States Patent and Trademark Office ("PTO"). At the request of Innolux, the district court stayed the case pending the completion of the IPRs. The PTO accepted all seven of the IPRs, which remain pending before the Patent Trial and Appeal Board.
  • Lead trial counsel on behalf of Key Brand Entertainment Inc. in a matter against Live Nation involving the £90 million sale of theatres in the United Kingdom (case settled) and in an arbitration over the sale of certain theatres in Toronto, Canada (case settled).
  • Lead trial counsel in numerous patent cases around the country, including a case against Boston Scientific over angioplasty catheters that settled favorably the day before jury selection.
  • Represented the inventor of revolutionary medical devices, instruments and methods for spinal fusion surgery, in a three-month breach of contract and patent infringement trial, resulting in a total verdict valued at approximately $570 million, including $400 million in punitive damages.
  • Lead trial counsel on behalf of defendant Diskeeper Corporation in a patent infringement action brought by Uniloc. Uniloc dismissed the case with prejudice with no payment by Diskeeper.
  • Lead trial counsel in a jury trial against one of the largest aerospace companies in the United States; after a five week trial, the jury awarded $8.5 million in favor of Stan's client.
  • Successfully represented an aerospace company in an arbitration in which the arbitrators awarded the client $17 million in damages.
  • Represented the leading designer of Hawaiian jewelry in a copyright and trade dress infringement claim against a rival jewelry company. After a bench trial, the Court awarded the client $2.3 million in disgorgement (representing all of the defendants' gross sales) on the trade dress claim and approximately $700,000 in attorneys' fees finding that the case was exceptional. The Ninth Circuit affirmed the award in its entirety.
  • Represented the manufacturer of telescopes involving software technology patents for the operation of telescopes; defeated preliminary injunction and obtained summary judgment in favor of client who was a defendant in patent infringement case brought by main competitor.
  • Successfully represented the owner of a major league baseball team in a Title VII discrimination case, in which the jury returned a defense verdict and the District Court awarded attorneys' fees and costs against the plaintiff.

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.    

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 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.

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.

Steven C. Bennett's practice at Park Jensen Bennett LLP (New York City) focuses on complex domestic and international commercial litigation and arbitration, including bankruptcy, construction, corporate governance, data security, energy, privacy, real estate and other matters. Mr. Bennett gained extensive trial experience during six years at the Office of the United States Attorney for the Southern District of New York, where he served as Chief of the Tax and Bankruptcy Unit, and nearly twenty years as a partner in a major international law firm.

Judge Maas is a United States Magistrate Judge for the Southern District of New York.  He has a B.A. degree from Harpur College of the State University of New York at Binghamton and a J.D. degree from the New York University School of Law, where he served as Articles Editor of the Journal of International Law and Politics.  Before his appointment, Judge Maas was a law clerk and federal prosecutor in the Southern District of New York, a partner in the New York City office of a large upstate firm, and First Deputy Commissioner of the New York City Department of Investigation.  As First Deputy Commissioner, he was responsible for the day-to-day operations of an internal affairs agency with nearly 400 employees, including attorneys, police officers, and civilian investigators, and oversaw the City’s internet security efforts. Judge Maas lectures frequently on topics related to e-discovery.

Judge Maas is a member of the Federal Bar Council, the Federal Magistrate Judges Association, the Association of the Bar of the City of New York, and the New York State Bar Association.

Judge Maas and his wife Sidney have two sons:  one lives overseas, the other is a domestic computer geek.