Overcoming Class Action ESI Challenges: Preserving and Reviewing ESI; Limiting Discovery, Arguing Proportionality

Experts estimate that more than 90% of all business information is in electronic format. Document review and production expenses constitute the lion’s share of discovery costs, and e-discovery is the most expensive and time-consuming part of most litigation. Counsel and clients can easily become bogged down and fear of a spoliation allegation may lead to excessive preservation.

In the wake of the 2015 amendments to Rule 26(b) of the Federal Rules of Civil Procedure, courts have emphasized that parties must rein in extensive and expensive discovery requests. Class action litigators must be able to advance effective proportionality arguments as a basis for objecting to opposing counsel’s discovery requests.

Amended Rule 37(e) clarified the measures a court may take in response to a party’s failure to preserve ESI, including, in some cases, entry of default judgment. Litigators cannot afford to wait to formulate plans for client information management and discovery. Practitioners must also prepare to work with opposing counsel to manage this vexing process.

Listen as our authoritative panel of class action attorneys discusses defense strategies for overcoming the challenges of e-discovery. The panel will impart best practices for preserving and reviewing ESI, limiting the scope of discovery, making proportionality arguments, and avoiding spoliation sanctions. The panel will also discuss federal and state procedure rules impacting e-discovery and engaging legal and e-discovery class proceedings experts.

1. Preservation of ESI
2. Strategies for review of ESI
3. Proportionality and discovery planning
4. Sanctions for spoliation
5. Impact of state and federal e-discovery rules
6. Strategies for limiting the scope of e-discovery
7. Engaging legal and e-discovery class proceedings experts
8. Review of recent e-discovery case law

The panel will review these and other key issues:

• What steps should counsel take in issuing and responding to litigation holds?
• How can counsel best protect the client’s interests while working with opposing counsel to manage the discovery process?
• When drafting discovery requests in class actions, what considerations should counsel take into account to ensure that the requests are in line with the new proportionality standard?
• What types of technology-assisted review tools are available and likely to be accepted by courts?