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Over 100 attorneys from throughout the country gathered in Chicago on March 9 to attend the American Bar Association’s inaugural National Institute on E-Discovery. Jenner & Block Partners Ronald L. Marmer and Craig C. Martin served as faculty for the event.
Mr. Marmer, Co-Chair of the Firm's Securities Litigation Practice, served as a panelist in a session entitled, "Nuts & Bolts of E-Discovery," in which he and other panelists enacted a complex hypothetical dispute between two technology corporations involving issues of trade secret theft, breach of fiduciary duty, and copyright infringement. Mr. Marmer played the role of counsel to one of the corporations, advising his client on some of the key issues litigants typically face in e-discovery.
Among other things, Mr. Marmer discussed the e-discovery implications of preparing for a conference under Federal Rule of Civil Procedure 26(f), in which parties meet to determine the discovery needs of the particular case. Mr. Marmer stressed the importance of meeting with a client’s IT staff and analyzing data retention policies as quickly as possible after litigation has begun, as a means of preserving key materials that could be critical to the litigation at issue.
Mr. Marmer said that attorneys overall need to maintain a "big-picture" view of e-discovery situations, and take into account strategy, resources, and cost. "Each of these factors plays a big role in how to conduct e-discovery in any given case," he said.
The Institute also included a session co-moderated by Mr. Martin entitled, "E-Ethics: Practical Considerations and Ethical Issues in Electronic Discovery," which highlighted an attorney’s professional responsibility and ethical duties in handling e-discovery matters.
Mr. Martin, Co-Chair of the Firm's Business Litigation Practice and Chair of its ERISA Litigation Practice, helped lead the panel in reviewing so-called "quick peek" and "claw back" agreements. According to the panelists, these agreements are designed to reduce the cost and complexity of producing electronic discovery materials by allowing a party to request only the data it sees fit after reviewing all of an opponent’s information.
However, the panel cautioned that such agreements may unintentionally leave a party’s privileged information susceptible to discovery by the opposing party. The panel recommended that attorneys carefully balance the benefit of reducing discovery expenses with the possible pitfalls that may result from an unintentional waiver.