Ride the Lightning

TWO MORE LAW SCHOOLS ADOPT ESI WORKSHOPS

January 5, 2010

In December, I blogged about the partnership between Merrill Corp. and the University of Alabama's law school creating an ESI course. I also lamented the general absence of such practical courses in law schools.

So I was delighted to hear from Michael Berman, an attorney with Rifkin, Livingston, Levitan & Silver, LLC and an adjunct professor at the University of Baltimore and University of Maryland schools of law. Mr. Berman was kind enough to let me know that, along with Chief Magistrate Judge Paul Grimm, he had designed and team-taught a three credit course (an ESI workshop) for both schools.

His note to me was informative and is printed below – perhaps it will assist others in designing such workshops. John and I were pleased to hear that our Electronic Evidence Handbook, written with noted litigator Bruce Olson, had provided some useful reference material for the course.

In the spring of 2008, The Honorable Paul W. Grimm and I developed a three-credit ESI workshop for law school students.  The class was first offered at the University of Baltimore School of Law, and it alternates each semester with the University of Maryland School of Law.  Because the goal was to teach both the current state of the law as it applies to ESI, and also to provide practical solutions, the workshop was restricted to a small number of second and third-year students. 

Much of the workshop is devoted to legal issues presented by ESI, such as pre-litigation planning involving the law governing document management and computer usage policies, what triggers the duty to preserve, how to impose, implement, and monitor a hold, and proportionality limitations on the scope of that duty.  The class also addresses litigation-related topics, such as how to request ESI in document requests; and how to appropriately respond to those requests, such as the proper technique for asserting that ESI is not reasonably accessible because of undue burden or cost.  The class also covers ethical issues, such as those involving production and review of metadata and Rule 26(g), as well as privilege issues.  It then closes with discussions of use of ESI in deposition and at trial, based on Lorraine.  Throughout, there is an emphasis on the Cooperation Proclamation and its impact, especially during the Rule 26(f) conference process.  Of course, the ESI Protocol of the United States District Court for the District of Maryland is used in that discussion.

The class is designed as a workshop.  Therefore, we decided that it was important to invite practitioners and consultants to address the class.  We invite a transactional attorney to discuss document management and computer usage policies, the chair of the State Bar Association Ethic Committee to address the ethical issues, and consultants who demonstrate indexing, enterprise, litigation support, and trial presentation software. Where possible, we download examples of videos from online resources and use them as teaching points.  We also invite highly-qualified, nationally-known forensic consultants, as well as attorneys who concentrate on ESI issues.  Because of our proximity to the D.C. area, we are able to attract nationally-known authors, and also present using web-based, distance-learning software.

Class materials are entirely posted online, allowing for frequent updates.  Students are given three short quizzes, and two “canned” papers. One of the “canned” papers involves drafting either a preservation letter or litigation hold notice, using your ABA book.  Another involves determining when litigation is reasonably anticipated in a turbulent, on-again, off-again, domestic relations situation.  The final exercise is a Rule 26(f) Conference of Parties based on a factual hypothetical describing a dispute between sophisticated  businesses.  When possible, we have coordinated with an information technology graduate school class at the University of Maryland, which is co-taught by Jason Baron, Esquire, of the National Archives, and Prof. Douglas Oard, of the University of Maryland I.T. school, so that each team of law students has real-world information technology assistance in preparing for and attending the mock Rule 26(f) conference.

Because of my interest in alternative dispute resolution of ESI issues, www.esi-mediation.com, as well as the Sedona Conference initiative, this semester will include a discussion of the use of special masters and mediation.

This year, because of other commitments, I am teaching the class solo, however, the genesis of the class, and all aspects of its design, were through Judge Grimm.

Thanks for your note – and I hope this a sign that law schools across the country are beginning to implement useful and practical courses on electronic evidence. As a raft of court opinions attest, lawyers are sorely in need of this education.

E-mail:   Phone: 703-359-0700

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