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1. Introduction - What is E-Discovery and Why Should We be Interested
2. E-Discovery Amendments to the Code of Civil Procedure and Rules of Court (AB05)
3. E-Discovery Overview - The Electronic Discovery Reference Model
4. What Are Computer Forensics
5. Preparing For and Conducting the Early Meeting of Counsel
6. Admissibility of ESI
7. Ethical Considerations in E-Discovery

Continuing Education Credits:   

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INTRODUCTION - WHAT IS E-DISCOVERY AND WHY SHOULD WE BE INTERESTED?
9:00 - 9:30, Diane E. Barry, Hon. James L. Smith and Madison S. Spach Jr.

• What is E-Discovery?
• How Does Electronic Discovery Differ from Traditional Discovery?
• The Value of E-Discovery/ESI in Litigation
• Is E-Discovery Necessary in Your Practice?

E-DISCOVERY AMENDMENTS TO THE CODE OF CIVIL PROCEDURE AND RULES OF COURT (AB05)
9:30 - 10:30, Diane E. Barry, Hon. James L. Smith and Madison S. Spach Jr.

• New Definitions
• New Duties Regarding the Case Management Conference
• Interrogatories
• Document Requests
• Deposition Practice
• Protective Orders
• No Duty to Produce Twice
• So Called "Safe Harbor" Provisions (Don't Rely on Them)
• Third Party Discovery
• Recent Decisions Interpreting/Affecting these Provisions

E-DISCOVERY OVERVIEW - THE ELECTRONIC DISCOVERY REFERENCE MODEL
10:45 - 11:30, Diane E. Barry, Hon. James L. Smith and Madison S. Spach Jr.

• Identifying Custodians and Sources of Data
• Interviews of Key Players
• Interviews of IT Custodians
• Preservation
• Preservation Notices and Litigation Holds
• The Duty Preserve is Broader than the Duty to Produce
• Not Every Item Collected and Preserved Needs to be Processed
• Collection
• Collecting Forensically Sound, Evidence Grade ESI Copies
• Common Problems/Issues
• Spoliation (Drag & Drop Collection Methods)
• Source Tracking (Chain of Custody)
• ESI Other than Emails and E-Files
• Databases
• CAD/CAM
• Other
• Processing
• Preservation of Metadata
• Deduplication
• Computer Forensics
• Review (Privilege; Confidentiality; Relevance)
• Production

WHAT ARE COMPUTER FORENSICS?
11:30 - 12:00, Diane E. Barry, Hon. James L. Smith and Madison S. Spach Jr.

• Forensic Collections
• “Forensically Sound Acquisition”
• Repeatable; Defensible
• Spoliation Protection
• Testimony (If Needed)
• What Kinds of Cases Need the Forensic Examination of a Hard Drive?
• What Kinds of Evidence can Forensic Examination Provide?
• What Has this Computer Been Doing and When?
• Timelines
• Patterns of Activity
• Internet Activity
• Login/Access activity
• Software Use/Addition/Removal
• Data Removal/Deletion/Transfers
• Altered Files/Tampering
• Testimony/Declarations
• Selecting and Engaging a Forensic Examiner
• Credentials
• Testimonial Considerations

PREPARING FOR AND CONDUCTING THE EARLY MEETING OF COUNSEL
1:00 - 2:00, Diane E. Barry, Hon. James L. Smith and Madison S. Spach Jr.

• Counsel's Duty to Meet and Confer
• Understanding the Client's ESI Systems
• Interviewing the Client
• Interviews of Key Players
• Interviews of IT Custodians
• Document Retention Programs
• Litigation Hold
• Notices
• Follow Up
• Negotiating with Opposing Counsel
• Scope of Discovery
• Custodians List
• Relevance Definitions (Search Terms; Other)
• ESI Types/Source Types
• Time Limits?
• Timing of Discovery, Including E-Discovery
• Production Formats
• Clawback Provisions
• Cost Shifting
• C.C.P. § 2031.280(C)
• C.C.P. § 2031.060
• Other Issues Affecting E-Discovery

ADMISSIBILITY OF ESI
2:15 - 3:30, Diane E. Barry, Hon. James L. Smith and Madison S. Spach Jr.

• Applying The California Evidence Code to ESI Evidence
• Authenticity
• Best Evidence Rule
• Hearsay
• Business Records
• Absence/Presence of a Business Record
• Habit and Routine Business Practice
• Statements Against Interest
• Rule of Completeness
• Laying a Foundation for Admissibility
• Start Early - In Discovery
• The Easy Way (Cooperative Witness)
• The Hard Way (Chain of Custody)

ETHICAL CONSIDERATIONS IN E-DISCOVERY
3:30 - 4:30, Diane E. Barry, Hon. James L. Smith and Madison S. Spach Jr.

• Duties Owed To
• The Client
• The Court and Opposing Counsel
• Privilege Review/Claw Back Provisions
• Effect of Federal Rule of Evidence 502
• E-Discovery Abuse - Unreasonable Requests for Production

DIANE E. BARRY is the director of discovery strategy and management at International Litigation Services, Inc. Ms. Barry's practice focuses on ESI discovery under state and federal rules of civil procedure, and complex litigation discovery planning and management. She has 20 years of experience as a practicing attorney and her engagements include matters in the areas of securities litigation, intellectual property, antitrust, and construction. Ms. Barry assists clients in preparing for discovery conferences and court appearances, as well as, specialized discovery practice such as a key player and IT reviews, and ESI custodian depositions. In addition she has significant expertise in utilizing technology to improve results in privilege and relevance review. Ms. Barry assists clients in tool selection as well as project planning and management for document review projects, including those involving foreign language challenges. She is a published author on the topic of ESI Discovery. Ms. Barry's current publications include 5 chapters in Matthew Bender's practice guide, California Ediscovery & Evidence: (1) Ethical Issues for Attorneys in E-Discovery; (2) Discovery of ESI Residing in Foreign Jurisdictions; (3) Establishing Best Practices Regarding Electronically Stored Information; (4) E-Discovery Deposition Practice; and (5) Admissibility and ESI Evidence. She also is a regular speaker and expert panelist. Typical speaking invitations include, an expert panelist on Admissibility of ESI evidence - American Bar Association 4th Annual Institute of Ediscovery - May 2010; an expert panelist - AB05 Amendments to the CCP for LexisNexis in December 2009; and instructor at Guidance Software CEIC 2009 on topic of 30(b)(6) depositions.

HON. JAMES L. SMITH retired in 1997, after 26 years as a trial court judge and two terms as presiding judge. Judge Smith retired from the Orange County Superior Court to become a full time arbitrator, discovery referee and mediator with JAMS ADR. To this day, he is the only Orange County Judge, active or retired, to have been assigned to all of the court's calendars. The breadth of Judge Smith's experience is one of the strengths he brings to the table as a mediator, arbitrator or discovery referee. He has presided over more than thousands of settlement conferences and trials as a judge, and since his retirement, has worked on more than 500 cases as an arbitrator, mediator or discovery referee, with an emphasis on complex litigation. One of the first judges in California to utilize electronic data processing tools "on the bench," Judge Smith has continued his interest in that technology by serving as special master in several matters involving the forensic examination of electronic media. As a discovery referee he is frequently called upon to resolve discovery disputes relating to accessing, archiving, and copying of data contained in electronic media of all sorts. Judge Smith has been a full time neutral with JAMS ADR, since 1997. He provides mediation, arbitration, discovery referee services, as well a training programs and seminars.

MADISON S. SPACH JR. is a member of Spach, Capaldi & Waggaman, LLP, an AV rated law firm serving the transactional and business litigation needs of clients in complex (often multi-forum) matters. Mr. Spach, a 28 year litigation veteran, heads up the firm's business litigation practice. After working as an associate at the Los Angeles office of Skadden, Arps, Slate, Meagher & Flom, he left to become a litigation partner of a prominent Orange County law firm. Mr. Spach has extensive trial experience in cases involving corporate/entity control issues, commercial and residential construction claims, securities claims (representing both plaintiffs and defendants), construction disputes, bankruptcy and complex financing matters, as well as media asset disputes (centering on First Amendment claims). He has represented fraud victims in cases requiring the identification and pursuit of multiple potential sources of recovery (including insurance coverage), often in simultaneous actions. Mr. Spach also has handled a wide variety of appellate matters in both state and federal appellate courts. He is a member of the Bar of the U.S. Supreme Court. Mr. Spach is a frequent speaker on technology matters and was one of only three lawyers appointed in the early 1990's by Microsoft Corporation to its original eight-member Ask the Experts panel on law office technology. He is recognized among the experts in the rapidly emerging area of electronic data discovery and is a frequent speaker on that topic.

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