E-Discovery in Employment Litigation: Preparing for New FRCP Amendments on Proportionality and ESI

Strategies for Preserving, Obtaining and Protecting ESI

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Wednesday, July 22, 2015

Recorded event now available

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This CLE course will provide employment counsel with a review of the challenges that arise when preserving, collecting and producing sensitive employee information during litigation. The panelists will prepare employment litigators for upcoming amendments to the Federal Rules of Civil Procedure covering proportionality and sanctions for failing to preserve ESI.


E-discovery is the most expensive and time-consuming part of employment litigation. Preservation is a minefield given the pervasive use of social media, increasing reliance on cloud storage, and the highly sensitive and confidential nature of employment-related ESI. Counsel and clients can easily become bogged down in minutiae, and fear of spoliation claims may lead to excessive preservation.

The proposed amendments to the Federal Rules of Civil Procedure—widely expected to become effective in 2015—will clarify and highlight the importance of the principle of proportionality, which can help manage potentially staggering costs and time associated with e-discovery. The proposed amendments also feature a rewritten Rule 37(e) that clarifies the measures a court may take in response to a party’s failure to preserve ESI, including, in some cases, entry of default judgment.

Listen as our authoritative panel of employment litigators discusses the nature and location of potentially relevant evidence and outlines strategies for overcoming the myriad issues likely to surface in litigating employment disputes. The panel will offer guidance on evaluating proportionality, tips for negotiating with opposing counsel to set discovery parameters that will pass judicial muster, and best practices for records and information management affected by the FRCP amendments.



  1. Review of proposed amendments to FRCP on scope and ESI
  2. Identifying relevant information in employment litigation
  3. Making the most of the Rule 26(f) planning conference
  4. Cost-effective e-discovery approaches


The panel will review these and other key issues:

  • What unique legal and practical issues make e-discovery in employment litigation particularly challenging?
  • How should litigators effectively weigh the factors for assessing proportionality?
  • What steps should counsel take in issuing and responding to litigation holds?
  • How can counsel help clients be proactive for present and future litigation in light of the FRCP amendments?
  • What types of technology-assisted review tools are available and likely to be accepted by courts?


Lynne Bernabei
Lynne Bernabei

Bernabei & Wachtel

Ms. Bernabei has been litigating employment discrimination, civil rights and whistleblower protection cases for over 30...  |  Read More

Kim A. Leffert
Kim A. Leffert

Mayer Brown

Ms. Leffert is an employment and labor litigator who devotes a significant and growing part of her work to electronic...  |  Read More

Ray, Niloy
Niloy Ray

Shareholder – eDiscovery Counsel
Littler Mendelson

Mr. Ray specializes in litigating critical e-discovery issues and challenges. He routinely advises clients on...  |  Read More

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