Ethics and eDiscovery: Why and How NOT to “Leave it to the techies”


CLE credits earned: 1 GENERAL and 1 ETHICS (or 1 LAW & LEGAL and 1 ETHICS for WA state), 1.0 TECHNOLOGY / 1.0 ETHICS for FL, IL, and NC

“Leave it to the techies” is no longer an acceptable strategy for ethical eDiscovery. Attorneys under ABA Model Rule 1.1 bear a duty to provide competent representation to their clients, and that duty now encompasses the duty to stay “abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” See ABA Model Rue 1.1, cmt. 8. This course focuses on what it means to conduct eDiscovery competently and offers practical guidance for counsel on how to meet its obligations in our ever-changing high-tech world. We’ll discuss the duty of competency and what it means in the context of eDiscovery today and how to effectively avoid and address some common pitfalls in the eDiscovery process.

This course is co-sponsored by the Federal Bar Association.

Key topics to be discussed:

•   An eDiscovery horror story: Don’t let this happen to you!
•   Overview of the eDiscovery process
•   Your ethical obligations in the context of eDiscovery
•   Current Frontiers and Potential Pitfalls

Date / Time: August 27, 2019

•   10:00 am – 12:00 pm Eastern
•   9:00 am – 11:00 am Central
•   8:00 am – 10:00 am Mountain
•   7:00 am – 9:00 am Pacific

Choose a format:

•   Live Video Broadcast/Re-Broadcast: Watch Program “live” in real-time, must sign-in and watch program on date and time set above. May ask questions during presentation via chat box. Qualifies for “live” CLE credit.
•   On-Demand Video: Access CLE 24/7 via on-demand library and watch program anytime. Qualifies for self-study CLE credit. On-demand versions are made available 7 business days after the original recording date and are view-able for up to one year.

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Original Broadcast Date: August 27, 2019

Tracy Greer, Esq.
U.S. Department of Justice, Antitrust Division

Ms. Greer is the Antitrust Division’s Senior Counsel for Electronic Discovery. She has been developing policies and practices addressing electronic discovery issues at the Antitrust Division for several years. She is also a member of the Department of Justice’s Electronic Discovery Working Group and the coordinator for the Antitrust Division’s Discovery and Technology Working Group. She has appeared on numerous panels and conferences and has been a faculty member at the Department’s National Advocacy Center on a variety of electronic discovery issues.

Ms. Greer received her law degree from the University of Texas at Austin where she served as the Managing Editor of the Texas Law Review. She clerked for Hon. Joseph Sneed on the Ninth Circuit Court of Appeals. She received her undergraduate degree from Brown University.

Scott Bilbrey, Esq. is a Principal in EY’s Forensic Technology & Discovery Services (FTDS) practice. Scott specializes in leading the execution of technology driven solutions in largescale eDiscovery matters.

Prior to joining EY, Scott was the Director of Litigation Support Services for Covington & Burling LLP, where he oversaw technical and eDiscovery services for the firm’s litigators and supervised the firm’s team of ediscovery specialists and litigation paralegals. His responsibilities included counseling clients on eDiscovery strategy and data management, as well as advising on technical and systems issues.

Scott also previously held leadership positions as Vice President of Client Services for the eDiscovery vendor nMatrix (now Epiq Systems), and Vice President of Operational Risk at Credit Suisse First Boston in New York, where he helped to overhaul CSFB’s records retention policies and procedures, and to re-engineer processes for identifying and sequestering data for prospective litigation.

Scott began his career at Davis Polk & Wardwell, where he was the first paralegal to use modern database systems for managing case materials, and was promoted to Supervisor and Systems Analyst in Litigation Services. His experience at DPW provided a front-row seat for many landmark eDiscovery matters, including the Enron matter for Arthur Anderson, which eventually led to a role as senior consultant with eDiscovery pioneer, Ibis Consulting.

Chris Wall, Esq. is a Senior Manager in the Forensic Technology & Discovery Services practice of Ernst & Young LLP. He is a former practicing attorney and has nearly two decades of experience assisting corporations and law firms with investigations, discovery and technology solutions in the US, Asia and Europe. With an LLM in International and European Community Law and a wealth of experience on cross-border issues, Chris serves as a key resource on cross-border discovery and data privacy issues.

Mr. Wall began his career practicing law in the Washington, D.C. offices of Skadden, Arps, Slate, Meagher & Flom, and McDermott, Will & Emery. Prior to joining EY, he was a Director at Navigant Consulting. Prior to joining Navigant in 2013, he was Senior Director and Legal Consultant in the Legal Technologies Division of Kroll’s Technology Services Group.

Mr. Wall advises law firms and corporate legal departments on the identification, analysis, review and safeguarding of electronic data – both structured and unstructured — in the context of investigations, litigation and regulatory matters. He has extensive experience using technology in internal investigations, civil litigation, criminal matters, and Hart-Scott- Rodino (HSR) civil investigative demands and second requests in the US and similar matters in European and Asian jurisdictions.

David Wiseman, Esq. is Senior Trial Counsel in the Civil Fraud Section of the Department of Justice. He has been with the Fraud Section for eighteen years and has investigated and litigated False Claims Act cases on behalf of the Department of Health and Human Services, the General Services Administration, the Department of Defense, the Export-Import Bank, and other government agencies. He is also the Professional Responsibility Officer for the Commercial Litigation Branch of DOJ and provides advice on compliance with the rules of professional responsibility to attorneys throughout the Commercial Litigation Branch.

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I. An eDiscovery horror story: Don’t let this happen to you!

II. Overview of the eDiscovery process

III. Your ethical obligations in the context of eDiscovery
a) The duty of competency applied to eDiscovery
b) Tasks an attorney must be able to perform competently
        i. Assess needs and issues: where does evidence reside and in what form?
        ii. Implement appropriate preservation protocols
        iii. Advise on available options for data collection
        iv. Engage in a competent and meaningful meet-and-confer with opposingcounsel concerning an e-discovery plan
        v. Search data
        vi. Produce responsive, non-privileged ESI in an appropriate manner
c) Sanctions and other consequences for breach of the duty of competency

Section IV. Current frontiers and potential pitfalls
a) Smartphones and the Internet of Things (“IoT”)
b) Structured data
c) Social media
d) The “cloud”
e) Data privacy statutes (e.g., the EU General Data Protection Regulation & theCalifornia Consumer Privacy Statute)