Litigation Holds, Defending Spoliation Motions, Mitigating Penalties, and Preparing for FRCP 37(e)
Recording of a 90-minute CLE webinar with Q&A
This CLE course will address best practices for document and ESI preservation, including issuing and overseeing the implementation of litigation holds with an eye towards avoiding spoliation allegations down the road. Our esteemed panelists will cover a number of currently trending topics including the substance and mechanics of implementing effective litigation holds; maintenance of adequate preservation efforts; strategies and arguments to defend against spoliation allegations and limit potentially severe consequences; and the proposed FRCP Rule 37(e).
- Preservation triggers and implementing hold notices
- Retention policies generally: mitigating risk without over-preserving
- Litigation hold notices – creation, implementation and oversight
- What triggers the need for a litigation hold
- What should be included in a litigation hold and who should receive it
- Oversight and ensuring continued employee awareness after implementation
- The inverted triangle of narrowing scope: Preservation – Collection – Production
- Avoids potential spoliation claims down the road
- Safeguards attorney-client and work product privilege concerns
- Backup tapes, metadata and other targets of potential spoliation claims
- Defending spoliation allegations
- Did a duty to preserve exist?
- Can the party alleging spoliation prove relevance?
- Can the moving party show a prejudicial effect?
- Using forensic and other experts to combat spoliation allegations
- Avoiding/Mitigating potentially severe consequences
- Monetary sanctions
- Exclusion of evidence
- Adverse inference
- Default judgments
- Criminal penalties
- Proposed FRCP Rule 37(e) and the Evolving ESI Spoliation Analysis
- Proposed amended Rule 37(e) as part of the eDiscovery mosaic: targeting a universal standard
- The workings of proposed Rule 37(e)
- Three part test at the Rule core
- Prejudice and available remedies
- Intent to deprive
- The Emergence of an ESI preservation safe harbor
- The Rule amendment process and the road ahead
The panel will review these and other key issues:
- What complexities must be considered in creating and implementing litigation holds?
- What should in-house and outside counsel do to mitigate the likelihood of facing spoliation allegations?
- What defense theories exist to combat spoliation allegations?
- What policies should be effectuated to lessen or avoid potential penalties in the event of a finding of spoliation?
- What are the workings of proposed Rule 37(e), including the three part test, prejudice and available remedies and intent to deprive?
Mr. Bonk focuses his practice in commercial litigation. He has represented clients across a wide range of industries in... | Read More
Mr. Bonk focuses his practice in commercial litigation. He has represented clients across a wide range of industries in both state and federal courts, arbitration, mediation, and as a part of regulatory and governmental investigative proceedings. He also has significant counseling experience as to best practices in electronic discovery and records retention, and regularly presents to clients and other audiences regarding e-discovery and retention subject matters.Close
James S. Kurz
Redmon Peyton & Braswell
Mr. Kurz's law practice builds on his experience as a litigation partner with two AmLaw 100 firms, his time as a... | Read More
Mr. Kurz's law practice builds on his experience as a litigation partner with two AmLaw 100 firms, his time as a federal prosecutor, and his work as a federal government antitrust attorney. He has extensive courtroom experience in business litigation, including computer, software and communications technologies cases. His professional resume lists in excess of 180 trials to verdict, including more than 40 jury trials. His practice includes a focus on the challenge of electronic discovery and the issues of Information Governance.Close
Daniel D. Mauler
Redmon Peyton & Braswell
Mr. Mauler is a trial lawyer with a background in information technology and gravitates to technology-intensive cases.... | Read More
Mr. Mauler is a trial lawyer with a background in information technology and gravitates to technology-intensive cases. His practice areas include Commercial Litigation, eDiscovery and Information, Governance, and Foreign Judgments.Close