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E-Discovery and Ethics: technology assisted reviews, predictive coding, the judicial role and ethical considerations

Total Credits
2 - 3
CDs/DVDs Only
This course is only available in CD/DVD format.
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A diverse panel of experts including a US magistrate, practitioners, an ethicist and a discovery solutions expert will provide a primer on technology-assisted reviews, predictive coding, current case law and the ethical problems that are inherent in using e-discovery software.

Some of the issues which will be addressed include:

  • Defensibility/Validation of technology-assisted reviews
  • Reasonableness of predictive coding: advantages; impact of size of data set
  • Different types of technology-assisted reviews/predictive coding: are all types of technology assisted review technology alike? How to integrate into a firm’s review platform
  • Disclosure obligations and benefits
  • Uses of technology-assisted reviews that do not have ethical implications
  • Judicial role: when the court should become involved in evaluating a review protocol; standards a court should use in reviewing technology-assisted review; what the court will require from the parties to be satisfied as to the reliability of technology-assisted review; can a court require disclosure of seed sets if selection of the seed documents constitutes attorney work product or if the sets contain documents that contain work product, attorney-client communications, or confidential documents
  • Resources and models available to small firms
  • Benefits of e-Discovery to small organizations and law firms
  • Ethical applications: reasonable inquiry problems; negotiations with opposing party; inadvertent disclosure of information; disclosure of confidential information in metadata; outsourcing e-discovery and client confidentiality

Lecturer Bios

Steven Berrent

Steven Berrent is the managing director of WilmerHale DiscoverySolutions. His primary responsibilities include leading the firm’s efforts with respect to developing and implementing strategies and staffing models for the management of complex litigation/controversy matters with specific emphasis on e-discovery, document review and bringing added value to WilmerHale clients through WilmerHale DiscoverySolutions. He joined the firm in 2008.

Prior to joining the firm, Mr. Berrent was the director of Litigation Services at another firm in New York, where he managed more than 100 paralegals, legal technologists, case managers and staff attorneys. He also advised clients, attorneys and case teams on issues relating to electronic documents, e-discovery and information management. Previously, Mr. Berrent was an associate at a firm in New York, where he was a member of the Electronic Discovery Task Force and worked on complex commercial litigations, arbitrations and investigations in diverse industries.

Mr. Berrent has worked as the Director of Information Technology for Vice President Al Gore’s presidential campaign, where he designed, implemented, and maintained computer networks and related technologies for the campaign and advised the Vice President and staff on information technology issues, solutions and strategy.

Mr. Berrent volunteers with the William J. Clinton Foundation and has worked with President Clinton on his Harlem Small Business Initiative, Hurricane Katrina relief, and the Clinton HIV/AIDS Initiative. In that capacity, Mr. Berrent has traveled to Louisiana, Beijing, Sydney and elsewhere on behalf of the Clinton Foundation.

Mr. Berrent received his JD from the Cornell Law School in 2004 and a BA in Political Science from Emory University in 1997.

Lewis Tesser, Esq.

Lewis Tesser is a senior partner in the New York law firm of Tesser, Ryan & Rochman, LLP, concentrating his practice in litigation and mediation, representing licensed professionals and professional practices, administrative law and commercial law. Lew Tesser is Vice-President of the New York County Lawyers’ Association and Director of its Ethics Institute.

Prior to private practice, Mr. Tesser was an Assistant United States Attorney in the Eastern District of New York. In that capacity, he represented various agencies of the United States government in litigation in the United States District Court and United States Court of Appeals. Mr. Tesser also served as a Judge Advocate in the United States Army where he prosecuted and defended criminal cases and was the chief legal advisor to the Commanding General of the U.S. Army War College, Carlisle, Pennsylvania. He also has served as an Arbitrator for the American Arbitration Association, New York City Civil Court, a Judge for the Environmental Control Board of the City of New York and a lecturer for various Bar Associations and New York area law schools.

Mr. Tesser, who was admitted to practice in 1971, is a 1970 Honors graduate from the National Law Center, George Washington University, a Masters graduate from the Wharton Business School, University of Pennsylvania (l974) and a graduate of the Harvard Law School Program of Instruction for Lawyers. He is a past President of Congregation Sons of Israel, Nyack, NY.

Hon. James C Francis IV

James C. Francis IV has been a United States Magistrate Judge in the Southern District of New York since October 1985. He received his B.A. from Yale College in 1974, his juris doctor degree from the Yale Law School in 1978, and a masters degree in public policy from Harvard University, also in 1978. 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. Judge Francis currently serves as an Adjunct Professor at the Fordham University School of Law where he teaches Constitutional Torts.

In the field of electronic data and the law, Judge Francis is the author of Rowe Entertainment, Inc. v. William Morris Agency, 205 F.R.D. 421 (S.D.N.Y. 2002) (allocation of costs), Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162 (S.D.N.Y. 2004) (obligation to preserve ephemeral data), Treppel v. Biovail Corp, 233 F.R.D. 363 (S.D.N.Y. 2006) (standards for preservation orders), Rozell v. Ross-Holst, 2006 WL 163143 (relevance of e-mails to claim of computer hacking), Treppel, 249 F.R.D. 111 (S.D.N.Y. 2008) (remedies for spoliation of electronically stored information), Richard Greene (Fine Paintings) v. McClendon, 262 F.R.D. 284 (S.D.N.Y. 2009) (consequences of destruction of electronically stored information), Orbit One Communications, Inc. v. Numerex Corp., 271 F.R.D. 429 (S.D.N.Y. 2010) (prerequisites for spoliation sanctions), Chen-Oster v. Goldman, Sachs & Co., 2012 WL 3964742 S.D.N.Y. 2012) (proportionality, sampling, and phased discovery), and US Bank NA v. PHL Variable Ins. Co. , 2012 WL 5395249 (S.D.N.Y. 2012) (proportionality, cost-shifting, and privilege review).

Jason Lichter

Jason Lichter is the director of discovery services and litigation support at Pepper Hamilton LLP. In this capacity, Mr. Lichter develops and implements strategies to ensure that the firm’s clients receive the highest quality discovery and litigation support services in a cost-effective and defensible manner. Mr. Lichter advises colleagues and clients on how to leverage the latest technologies and e-discovery best practices to efficiently guide matters from initial document preservation and collection through to production and eventual presentation at trial. An area of particular emphasis is document review, for which Mr. Lichter applies well-developed protocols and procedures in staffing, training, project and vendor management, quality control, privilege review, knowledge transfer, and increasingly statistical analysis to promote efficiency, mitigate risk, and gather metrics for use in preparing accurate budget estimates.

Mr. Lichter has counseled clients and colleagues on such varied topics as the implementation of e-discovery readiness action plans, vendor requests for proposal, defensible approaches to preservation, forensic and reasonably tailored data collections, cloud-based and structured data considerations, efficient and cost-effective document filtering and review strategies (including technology-assisted review), and quality control techniques.

A frequent speaker and writer on e-discovery trends and developments, Mr. Lichter’s strong technical background includes substantial computer science coursework while an undergraduate at Yale University, followed thereafter by work experience as a software engineer for Sapient, a leading technology services consultancy. Mr. Lichter is a member of the Sedona Conference’s Working Group 1 on Electronic Document Retention and Production, a member of the Electronic Discovery Committee of the New York State Bar Association’s Federal and Commercial Litigation Section, and a member of the American Bar Association’s E-Discovery and Digital Evidence Committee. In 2009, he was named a “Future Star” by Benchmark Litigation: The Definitive Guide to America’s Leading Litigation Firms & Attorneys.

A litigator by training, Mr. Lichter has represented clients on a wide variety of complex commercial, labor and employment, and intellectual property disputes in state and federal courts and in a broad array of industries, including media, finance, insurance, maritime, hospitality, real estate, telecommunications and construction. Mr. Lichter also has achieved very favorable results for several pro bono clients. In 2009, he represented a former inmate as co-lead counsel in a week-long excessive-use-of-force trial in the Southern District of New York. Mr. Lichter obtained a complete plaintiff’s verdict and a $750,000 damages award. Mr. Lichter also argued a criminal appeal before the New York Appellate Division, obtained a favorable settlement for a film editor seeking unpaid wages and editing credit on a Sundance award-winning documentary, and recovered a domain name from a cybersquatter on behalf of Save the Children. In recognition of his dedication to providing pro bono services, Mr. Lichter received the Legal Aid Society Pro Bono Award in both 2006 and 2009 and was honored with the New York State Bar Association’s 2008 Empire State Counsel Award.

Mr. Lichter graduated cum laude from Yale University in 2000 and received his J.D. from Harvard Law School in 2004. While at Harvard, Mr. Lichter worked at the Berkman Center for Internet & Society, where he contributed to an amicus brief addressing novel copyright issues that was submitted at the request of the court. Prior to joining Pepper, Mr. Lichter served as senior counsel and east coast lead in the E-Discovery and Information Governance practice of an Am Law 100 firm.

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