Litigation Holds in Employment Lawsuits: Creating an Early and Effective Plan for Collecting and Preserving ESI

Best Practices to Reduce Risks, Manage Costs and Avoid Sanctions Under the Amended Federal Rules

A live 90-minute CLE webinar with interactive Q&A


Tuesday, September 26, 2017 (in 4 days)
1:00pm-2:30pm EDT, 10:00am-11:30am PDT


This CLE webinar will provide guidance to employment litigators for implementing litigation holds in collective, class action and individual lawsuits. The panel will discuss best practices for creating a litigation readiness and document preservation plan to avoid potentially costly spoliation allegations and sanctions under FRCP Rule 37(e).

Description

Discovery in employment lawsuits is costly for employers and employees alike. Employers possess far more electronically stored information (ESI) than employees, which makes litigation holds and e-discovery particularly onerous for them. Employees are also at a disadvantage because they typically do not have the resources or technical expertise to conduct forensic audits or analyze ESI.

Mapping out a plan for collecting and preserving documents and ESI is essential to pursuing or defending an employment lawsuit. Early and effective litigation holds are critical, and employment counsel is the linchpin in this process, responsible for ensuring compliance with preservation and collection requirements.

Lawyers must develop, implement, revise as appropriate, and ultimately lift, litigation holds. Accordingly, robust underlying policies are essential to avoid missteps and sanctions. Spoliation sanctions can range from monetary penalties, evidence exclusion, adverse inference jury instructions and default judgments. Counsel will position themselves to overcome spoliation allegations by following guidelines comporting with best practices and ongoing legal obligations.

Listen as our authoritative panel outlines effective techniques for using litigation holds in employment lawsuits. The panel will also offer solutions to real life challenges for attorneys implementing litigation holds, including departing employees, obsolete or legacy software systems, data on smartphones and other mobile devices, and more.

Outline

  1. Preservation triggers and implementing hold notices
  2. Elements of a litigation readiness and document preservation plan
  3. Defending against spoliation motions
  4. FRCP Rule 37(e) and the evolving ESI spoliation analysis

Benefits

The panel will review these and other key issues:

  • What are the complexities in creating and implementing litigation holds in the employment law context?
  • What should in-house and outside counsel do to mitigate the likelihood of facing spoliation allegations?
  • What policies should be effectuated to lessen or avoid potential sanctions if there is a finding of spoliation?
  • How are the amendments to Rule 37 and Rule 26 affecting litigation holds?

Faculty

Ayse Kuzucuoglu, Esq.
Vedder Price, San Francisco

Ms. Kuzucuoglu represents employers in state and federal court litigation with emphasis on employment class actions and single-plaintiff cases involving discrimination, harassment, retaliation and wrongful-termination claims. Ms. Kuzucuoglu has extensive experience counseling employers on a wide array of labor and employment related matters, including wage and hour compliance, employee hiring and terminations, discipline, unemployment compensation and workplace policies tailored to prevent litigation.

Matthew T. Scully, Partner
Burr & Forman, Birmingham, Ala.

Mr. Scully has considerable experience litigating and advising clients concerning all aspects of employment law, including workplace investigations, disciplinary actions, employment policies, and managing leave. He has experience working with clients in various industries and with small, medium and large sized employers, including Fortune 500 companies. Mr. Scully is a frequent presenter on a number of human resource matters, including developments under the National Labor Relations Act and Title VII.


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Employment & ERISA Advisory Board

Susan E. Bernstein

Special Counsel

Schulte Roth & Zabel

Judith (Jude) Biggs

Partner

Holland & Hart

Joshua Davis

Director

Goulston & Storrs

Barbara E. Hoey

Partner

Kelley Drye

Jeffrey Hollingsworth

Partner

Perkins Coie

Diana L. Hoover

Partner

Hoover Kernell

Paul J. Kennedy

Shareholder

Littler Mendelson

Marcia Nelson Jackson

Partner

Wick Phillips

William C. Martucci

Partner

Shook Hardy & Bacon

Laura Foote Reiff

Shareholder

Greenberg Traurig

Eugene Scalia

Partner

Gibson Dunn & Crutcher

Peter Steinmeyer

Member

Epstein Becker & Green

Teresa R. Tracy

Partner

Freeman Freeman Smiley

Todd D. Wozniak

Shareholder

Greenberg Traurig

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