Course Overview

The ESI Pretrial Discovery: - Strategy and Tactics Course identifies and addresses the strategy and tactics for handling electronically stored information (ESI) issues throughout pretrial discovery. These include scope of discovery, preservation obligation and legal holds, controlling costs, search methodology, form of production, accessibility of ESI, limitations on discovery, clawback agreements, cost allocations and much more. Whether it is a "meet and confer" or "request for production," these are critical issues to focus on in requesting or producing ESI.

The digital revolution has brought important changes to how legal professionals conduct discovery and advise their clients concerning electronically stored information (ESI). The discovery and production of digital evidence is now a vital part of litigation. Attorneys are now faced with a changing format of evidence - emails, metadata, text messaging, word processing documents, spreadsheets, and other electronic types are the targets of discovery.

The primary difference between the "advanced" and "basic" Legal Issues Courses is the length of the videos and additional readings. The Advanced Legal Issues Course is approximately 8 hours of video and the Basic Legal Issues Course is 3 hours of video. The critical issues under both series are covered, though in more detail in the "advanced" series.

The course includes a series of video programs, readings, and quizzes. The Course is available for a Certificate of Completion and is CLE eligible.

Course Textbook - Best Practices Guide

This readings for this course are from the Arkfeld's Best Practices Guide for ESI Pretrial Discovery. You may already have this Best Practice Guide available through your organization's Lexis Advance online legal research subscription or it may already be in your library. If not, the Best Practices Guide may be purchased at a 30% discount, using the promotion code 2023EDEC30 (approximate cost $100) and is available in a print or digital format. LexisNexis® Store. This cost of this Course book is not included in the price of the program.

What You'll Learn

Upon successful completion of this course, students will:

  • Understand the current state of affairs in ediscovery

  • Understand their legal obligations as a legal professional

  • Understand the severe consequences of failing to understand the importance of ESI

  • Counsel clients in regard to the retention and preservation of ESI

  • Identify when to establish an appropriate legal hold

  • Identify the critical pretrial issues affecting eDiscovery

  • Negotiate, based on case law and procedural rules, eDiscovery compliance with the opposing party

  • Grasp and apply the federal and state rules and caselaw that govern the world of eDiscovery

Course curriculum

  • 3

    Chapter 2 - Nature of Claims, Scope of Discovery, Terminology and Classification (Basic)

    • Part 1 & 2 - Nature of Claims, Scope, Terminology, etc. and Scope of Discovery

    • Part 3 & 4 - Terminology and Classification and ESI Type, Storage and Location - 14 mins.

  • 4

    Chapter 3 - Legal Holds and Controlling Costs (Basic)

    • Part 1 & Part 2 - Duty to Preserve, Legal Holds and Triggering Event - 14 min.

    • Part 3, 4 & 5 - Scope of Preservation, Legal Hold Tasks and Controlling Costs - 14 mins.

  • 5

    Chapter 4 - Search Methodology and Protocol, Inspection of Computer Systems and Chain of Custody (Basic)

    • Assignment - Chapter 4

    • Part 1, 2, & 3 - Search, Inspection of Computers, and Chain of Custody

  • 6

    Chapter 5 - Electronically Stored Information (ESI) Format Disclosure Requirements (Basic)

    • Assignment - Chapter 5

    • Part 1 & 2 - Rule 34 "Document" and ESI, Native File, Form of Production - 18 mins.

    • Part 3 & 4 - Procedural Rule Analysis and “Form” for ESI Disclosure - 11 mins.

  • 7

    Chapter 6 - Privileged ESI, Nonwaiver Agreement and FRE 502 (Basic)

    • Assignment - Chapter 6

    • Part 1 - Privileges - 20 minutes

    • Part 2 - Inadvertent Disclosure, Non-Waiver Agreements, and Retrieval Procedure - 14 mins.

  • 8

    Chapter 7 - Cost Allocation (Proportionality), Protective Orders, Burdensome and Relevancy (Basic)

    • Assignment - Chapter 7

    • Part 1 & 2 - “Not Reasonably Accessible”, Cost Allocation (Proportionality), Sampling, and Burdensome - 14 mins.

    • Part 3 - Relevancy, Overbroad and Protective Orders - 10 mins.

  • 9

    Chapter 8 - Certification of Production Efforts (Basic)

    • Assignment - Chapter 8

    • Part 1 & 2 - Certification of Discovery Responses - Rule 26(g) and Search Methodology, Protocol and Legal Hold Efforts - 12 mins.

  • 10

    Chapter 9 - Spoliation and Sanctions (Basic)

    • Assignment - Chapter 9

    • Part 1 & 2 - Spoliation, Destruction of Evidence , and Sanctions - 17 minutes

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