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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, 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 Prasad is the Founder and CEO of Discovery Services LLC, a document review and electronic discovery company headquartered in Chicago 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, 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 United States Magistrate Judge for the United States District Court in Kansas City, Kansas having been appointed in 1999 and reappointed in 2007. 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 is a Past-President of the Kansas Bar Association and as a KBA delegate to the ABA House of Delegates was a member of the Board of Governors of the KBA from 1988 -2008. He is a member of the Earl E. O’Connor Inn of Court and is a Past-President of the Inn. He is also a member of the American Bar Association (Judicial Division), Johnson County Bar Association, Kansas City Metropolitan Bar Association, Wyandotte County Bar Association and Federal Magistrate Judge’s Association.  Judge Waxse is past Chair of the National Conference of Federal Trial Judges of the Judicial Division of the ABA and a member of the ethics committee of the Judicial Division. He is currently the Chair of the Judicial Division of the ABA.  He is also a fellow of the Kansas Bar Foundation and the American Bar Foundation. 

He is also an Observer to The Sedona Conference Working Groups on Electronic Document Retention and Production (WG1) and International Electronic Information Management, Discovery and Disclosure (WG6). He has been a lecturer in law at the University of Kansas School of Law and has made presentations on electronic discovery and other topics in programs presented by the American Bar Association, the American Association for Justice, the Defense Research Institute, the Federal Judicial Center, the Practising Law Institute,  the University of Kansas, the University of Missouri at Kansas City, Washburn Law School, Georgetown Law School, and various other organizations. His is the author of "Do I Really Have To Do That? Rule 26(a)(1) Disclosures and Electronic Information‚"10 Rich .J.L. & Tech. 50 (2004)‚ “Cooperation--What is it and Why Do It? 18 Rich. J.L. & Tech. 8 (2012), “Experts on Computer-Assisted-Review: Why Federal Rule of Evidence 702 Should Apply to Their Use” 52 Washburn L.J. 207 (2013), “Advancing The Goals of a ‘Just, Speedy and Inexpensive’ Determination of Every Action: The Recent Changes to The District of Kansas Guidelines for Cases Involving Electronically Stored Information,” 26 Regent U. L. Rev. 111 (2013), “Clawback Orders” American Journal of Trial Advocacy, 37 Am. J. Trial Advoc. 567 ( 2014)

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. He is currently a member of the Judicial Conduct Advisory Committee of AJS and a member of the board of directors of the Kansas Humanities Council.

David Lender is a partner and commercial litigator in the New York office of Weil, Gotshal & Manges LLP, and co-chair of Weil’s global, 400-lawyer Litigation Department. Over the past several years, he has successfully tried numerous cases to verdict, including a $170 million jury verdict for GE in a patent infringement case against Mitsubishi, a complete defense jury verdict for ESPN in a $231 million lawsuit brought by Modi Entertainment Network and a $416.88 million plaintiff jury verdict for ExxonMobil against Saudi Basic Industries Corporation (SABIC).

Mr. Lender is a nationally recognized expert in electronic discovery.  He is the co-author of a book on the subject entitled Electronic Discovery: Law and Practice (Aspen Publishing, 2013), which has been cited in numerous landmark electronic discovery cases by federal courts; author of the book Privilege Issues In The Age of Electronic Discovery (BNA, 2013); and is a frequent lecturer and author on the subject.  He is also the head of his firm’s E-discovery Task Force.

Mr. Lender is a member of the Executive Committee for New York Lawyers for the Public Interest.  He 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.

Jeffrey Fowler is a partner in the Litigation Department of O’Melveny & Myers and a founder of the Firm’s Electronic Discovery and Document Retention Practice.  Having handled his first eDiscovery assignment in 1998, Jeff is recognized as one of the country’s longest-serving eDiscovery litigators.  Jeff is also one of the few whose practice is entirely dedicated to resolving and litigating eDiscovery issues.

Jeff serves as eDiscovery counsel for a broad spectrum of clients, including Fortune 500 companies in the food, healthcare, and financial industries, and appears as the lead lawyer responsible for eDiscovery issues in complex litigations, including many not otherwise handled by his firm.  Jeff successfully limits the scope and cost of discovery by negotiating favorable document preservation and production agreements while also managing defensible and cost-efficient data collection and review processes.  Jeff routinely appears before judges and magistrates to litigate cutting-edge eDiscovery issues, and has litigated both sides of evidence spoliation claims. 

Jeff is a regular speaker and panelist on eDiscovery issues, including at PLI, and is the coauthor of the practice guide Preserving Electronic Information: A Practical Approach, BNA Books (2009).

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.

Tom 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 Rule 37(e) of the 2006 Amendments, a topic he continues to follow in its “second wave” of federal and state rulemaking. 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 publishes and speaks widely on the topic of e-discovery and corporate compliance.

Ms. Jordan has 30+ years’ experience advising multinational corporations as both as a senior executive with responsibility for the corporations’ legal affairs and as outside counsel.   She currently heads Jordan Associates, a firm that provides legal services to high-tech and consumer products companies, as well as consulting to corporations looking to focus their legal services more strategically in rapidly changing business environments.    She also serves as a mediator and arbitrator on AAA’s and CPR’s commercial panels.

Prior to founding Jordan Associates, 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.  Before that she was Vice President and General Counsel for Sega of America, Inc., a partner in the Palo Alto firm, Carr, & Ferrell, and Assistant General Counsel for Dole Foods, Inc., a $2 billion food processing and real estate development corporation.

Gil Keteltas is a partner at Baker Hostetler in Washington, D.C., where he serves as Co-National Lead of the firm’s e-discovery practice. Gil acts as an e-discovery advocate in significant and complex litigation and advises global companies on the creation and deployment of discovery response programs. Gil is editor of, and a regular contributor to, Baker Hostetler’s Discovery Advocate blog. Gil is active in The Sedona Conference, serves on the Advisory Board of Georgetown Law’s Advanced E-Discovery Institute, Planning Committee and faculty and regularly teaches seminars on electronic discovery and electronic evidence. His publications include chapters in Electronic Evidence: Law and Practice (“Discovery of Electronic Evidence,” ABA Section of Litigation, 2d Ed. 2008), E-Discovery and Data Privacy: A Practical Guide (“U.S. E-Discovery,” Kluwer Law Int’l 2011) and Calculating and Proving Damages (“Damages and Discovery,” Law Jrnl. Press 2011). He received his degrees from Cornell and Georgetown University Law Center.

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.

Tara S. Lawler is a senior attorney in the Philadelphia office of Morgan, Lewis & Bockius LLP’s eData Practice Group.  Ms. Lawler focuses her practice on complex litigation matters with emphasis on product liability, toxic tort, and white collar litigation.  Ms. Lawler has experience in many aspects of litigation, including pretrial case management, preparing company witnesses, conducting company interviews, and assisting clients with government investigations, and related civil litigations. She is a member of The American Bar Association and she has served as the Managing Editor of the Temple Law Review. Ms. Lawler received her J.D., cum laude, from Temple University, Beasley School of Law and her B.A., cum laude, from the Villanova University.