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Legal Hold Pro was proud to host this 90-min. presentation for attorneys and e-discovery professionals on the ongoing discussion around best practices for data preservation. The panel featured four perspectives: Judges represented by Hon. James Francis (S.D.N.Y), GCs by Lynn Dummett (Allianz), William Butterfield (Hausfeld) for Plaintiffs' Counsel, and Robert Owen (Sutherland) for Defense Counsel. The panel was moderated by Hon. Ronald Hedges, a former U.S. Magistrate Judge and frequent presenter nationally on e-discovery issues.
Law Technology News reported in detail on this event in Coping with Preservation and Proportionality in Legal Holds published May 18, 2012 by Monica Bay.
The panel updated the audience on the topic of preservation and how the principle of proportionality should be applied. In anticipation of a discussion on amending the Federal Rules, the program represents different perspectives on how retaining data is viewed with their interests in mind. This is a timely program since the cost of preservation is squarely in the spotlight due to recent events, including the Dallas Mini-Conference last September and the Pippins v. KPMG opinion.
The program continues the discussion that was first covered in our latest Signature Paper Preservation and Proportionality.
Microsoft Submission to Dallas Mini-Conference, Microsoft, August 31, 2011. Letter addressing sub-committee on need for greater clarity and consistency regarding preservation obligations.
Robert Owen’s follow-up to Dallas Mini-Conference, Robert Owen, October 24, 2011. Expanded discussion concerning arguments for preservation rules reform and author’s proposed alternatives.
Report of the Judicial Improvements Committee (Pilot Project), L. Preska, October 31, 2011. Pilot project regarding case management techniques for complex civil cases in SDNY (including model order and discovery checklist).
Advisory Committee on Civil Rules, November 7-8 2011 Meeting (Washington DC), Various, November 7, 2011. Agenda for November 11 Meeting, including minutes of April meeting and subsequent work on preservation and sanctions issues by Discovery Subcommittee (materials prepared for and presented at Dallas Mini-Conference Sept 9 and subsequent conference calls Sept 13 and Sept 20; updated sanctions chart; etc.).
Testimony before Judiciary Subcommittee on the Constitution, William Butterfield, December 13, 2011. William Butterfield’s testimony regarding cost and burden of civil discovery (arguing against premature rules changes).
Pippins v KPMG Appeal (Denial of Motion), J. McMahon, February 3, 2012. Denial of KPMG’s appeal of magistrate’s ruling on required preservation.
LCJ Comment to Civil Rule Advisory Committee, Lawyers for Civil Justice, et al., March 15, 2012. Arguing for need for meaningful new standards governing discovery, preservation and cost allocation.
Discovery Subcommittee’s Consideration of Rule Changes Regarding Sanctions, William Butterfield and Ariana Tadler, March 19, 2012. Arguing that rules changes are premature and other considerations (includes Butterfield testimony 12/13/11).
Update on Subcommittee’s Dec 13 2011 hearing, Trent Franks, March 21, 2012. Arguing for continued review by the Civil Rules Advisory Committee of proposed rules changes.
Robert Owen’s input to March Rules Committee meetings, Robert Owen, March 21, 2012. Input to Rules Committee meetings in support of rules changes, as supported by Lawyers of Civil Justice.
Advisory Committee on Civil Rules March 22-23 2012 Meeting (Anne Arbor, MI), Various, March 22, 2012. Addendum to agenda materials for Ann Arbor, Michigan meeting held March 22-23 (including initial rules sketches from 2010 Duke Conference; March 6 2012 letter from DOJ regarding rules changes; proposed Rule 37(g) revision by J. Vail Center for Constitutional Litigation; Sedona Conference drafting teams status update; letter from T. Allman on proposed Rule 37(e) changes; summary of survey conducted by the Federal Judicial Center on early stages of litigation; and proposed FJC study of dispositive motions )
Introduction to Recommendations for ESI Discovery in Federal Criminal Cases, Joint Electronic Technology Working Group (JETWG), February 13, 2012. Recommendations for managing ESI discovery in federal criminal cases, including general guidelines and an ESI discovery checklist.
Where the Money Goes; Understanding Litigant Expenditures in Electronic Discovery, RAND Institute for Civil Justice (Nicholas Pace, Laura Zakaras), April 11, 2012. Results of corporate survey on expenditures for producing electronic discovery, and including summary of challenges of preservation and recommendations to improve tracking of costs and need for trans jurisdictional authority for preservation.
Letter from Constitution Sub Committee, John Conyers, et al., April 18, 2012. Arguing for the need for further review of existing rules reflecting on 12/13/11 Civil Discovery Hearing.
Hon. James C. Francis, U.S. Magistrate Judge, U.S. District Court for the Southern District of New York
The Honorable James C. Francis IV has been a United States Magistrate Judge in the Southern District of New York since October 1985, and served as Chief Magistrate Judge from 1998 to 2000. He graduated summa cum laude from Yale College in 1974, where he was a member of Phi Beta Kappa. He received his Juris Doctor degree from the Yale Law School in 1978 and a Master’s degree in public policy from the John F. Kennedy School of Government at Harvard University in the same year. 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. He continued in this capacity until his appointment to the bench. Judge Francis is an Adjunct Professor at the Fordham University School of Law where he teaches Constitutional Torts. He also provides instruction in the Intensive Trial Advocacy Program at the Benjamin N. Cardozo Law School and in the ALI-ABA program on Civil Practice and Litigation. He lectures frequently on topics including employment discrimination and electronic discovery. In addition to numerous judicial opinions, Judge Francis' publications include a law review article on voting rights, a chapter on pretrial management in Federal Civil Practice (G. Vairo, ed.), and several chapters of the most recent edition of Moore's Federal Practice. Judge Francis has served on the Legal Assistance, Federal Courts, Disability Rights, and Professional Responsibility Committees of the New York City Bar Association and the Federal Judiciary Committee of the New York State Bar Association. . Admitted to practice in New York and other bars of various courts of the United States.
Lynn Dummett is a Senior Vice President and Senior Counsel in the Legal Department of Allianz Global Investors. Since joining AGI in June 2011, Ms. Dummett has assumed multiple mandates, including management of AGI’s records and information management program, coordination and management of litigation, particularly as it relates to electronic discovery, and oversight of AGI's privacy program. Prior to joining AGI, Ms. Dummett was a partner in the litigation group of Sidley Austin LLP, where she also was a member of the firm’s E-Discovery Task Force. Ms. Dummett has over 25 years of litigation experience, which also includes positions as a senior in-house attorney in the litigation group of AT&T Corp., and as an Assistant U.S. Attorney for the District of New Jersey. Ms. Dummett graduated from Wellesley College, Wellesley, Massachusetts and received her law degree from the New York University School of Law.
William Butterfield, Partner, Hausfeld LLP
William P. Butterfield, a partner at Hausfeld LLP, where he concentrates on antitrust litigation and is an internationally recognized authority on electronic discovery. Mr. Butterfield’s recent achievements include settlements of over $120 million in a lawsuit alleging output restrictions in the wood products industry (In Re OSB Antitrust Litigation, (E.D. Pa.)), and almost $100 million in an antitrust case involving the chemical industry (In Re Hydrogen Peroxide Antitrust Litigation, (E.D. Pa.)). Previously, Mr. Butterfield was one of the principal attorneys involved in nationwide litigation challenging lending practices conducted by one of the nation’s largest subprime lenders. In that case, Mr. Butterfield worked extensively with the FTC and was responsible for bringing nationwide media and Congressional attention to lending practices conducted by Associates Finance. The plaintiffs and FTC eventually settled with Citigroup (which had acquired Associates Finance) for $240 million (In Re Citigroup Loan Cases, J.C.C.P. 4197). Mr. Butterfield has been a leader in the field of ediscovery since the early 1990s, when he helped design and implement an electronic document repository to manage more than 15 million pages of documents produced in a complex securities case. In 2005, Mr. Butterfield testified before the U.S. Judicial Conference Rules Committee regarding proposed electronic discovery amendments to the Federal Rules of Civil Procedure. Mr. Butterfield is on the Steering Committee of The Sedona Conference® Working Group on Electronic Document Retention and Production. He is also a member of the Sedona Conference® Working Group on International Electronic Information Management, Discovery and Disclosure. Admitted to practice in the District of Columbia and the bars of various U.S. courts.
Robert Owen, Partner, Sutherland Asbill & Brennan
Robert D. Owen, a partner in the New York office of Sutherland Asbill & Brennan, is a member of the firm’s Litigation Practice Group. He has more than 35 years of experience in commercial litigation. A nationally recognized adviser to financial services, energy and technology companies, Bob is known for creative and efficient dispute resolution. He has handled hundreds of cases before federal and state courts and arbitration panels throughout the United States. For more than 20 years, Bob led the commercial litigation boutique firm of Owen & Davis PC, which he co-founded. The 12-lawyer firm represented Fortune 500 clients in their complex litigation matters in New York and around the country. Bob is widely recognized for his leadership in e-discovery, having been an early adopter of litigation support technology at Owen & Davis and then a founder of the E-Discovery and Information Management Practice at another national law firm. Currently, he is a member of the editorial advisory board of Law Technology News, a participant in the Managing Information and Records in the Electronic Age working group of The Sedona Conference, and is listed by Chambers Global and Chambers USA (Band 1) in the e-discovery field. Admitted to practice in New York and he is also admitted to the bars of various courts of the United States.
Hon. Ronald Hedges, Former United States Magistrate Judge, moderator
Judge Ronald J. Hedges is the principal in Ronald J. Hedges, LLC. He has extensive experience in e-discovery and in management of complex civil litigation matters. Mr. Hedges was appointed in 1986 as a United States Magistrate Judge in the United States District Court for the District of New Jersey, where he served as the Compliance Judge for the Court Mediation Program, a member of the Lawyers Advisory Committee, and both a member and reporter for the Civil Justice Reform Act Advisory Committee. From 2001 to 2005 he was a member of the Advisory Group of Magistrate Judges. Mr. Hedges has also been an adjunct professor at Seton Hall University School of Law (1993-2007) and at Georgetown University Law Center since 2006. Since leaving the Bench in 2007, he has been the principal of Ronald J. Hedges LLC and, since January 2012, of counsel to the firm of Corodemus & Corodemus. Judge Hedges is admitted to the bars of the District of Columbia, New Jersey, New York and Texas. He is also admitted to the bars of various courts of the United States.