Course Overview:

The ESI Pretrial Discovery: Critical Issues, 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, quizzes. The Course is available for Certificate of Completion and is CLE eligible.

Course Textbook - Best Practices Guide

This course 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) in a print or digital format. LexisNexis® Store. This cost of this Course book is not included in the price of the program.

What's Included in the Course

Upon successful completion of this course, students will benefit by:

  • 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

  • 1

    ESI Pretrial Discovery: Critical Issues, Strategy and Tactics (Advanced)

    • Overview

    • Syllabus

    • Instructor

    • Resources

    • Certification and CLE
  • 2

    Chapter 1 - Overview, Current State of Affairs, IT and eDiscovery Basics (Advanced)

    • Assignment - Chapter 1

    • Part 1 - Overview and Current State of Affairs - 16 mins.

    • Part 2 - Overview of Information Technology (IT) - 15 mins.

    • Part 3 - Basics of Electronic Discovery - 17 mins.

    • Quiz - Chapter 1
  • 3

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

    • Assignment - Chapter 2

    • Part 1 - Nature of Claims, Scope, Terminology, etc. - 12 minutes

    • Part 2 - Scope of Discovery - 17 minutes

    • Part 3 - Terminology and Classification - 11 minutes

    • Part 4 - ESI Type, Storage and Location - 27 minutes

    • Quiz - Chapter 2
  • 4

    Chapter 3 - Legal Holds and Controlling Costs (Advanced)

    • Assignment - Chapter 3

    • Part 1 - Duty to Preserve and Legal Holds - 12 mins.

    • Part 2 - Duty to Preserve & Triggering Event - 11 mins.

    • Part 3 - Scope of Preservation - 12 mins.

    • Part 4 - Legal Hold Duties and Tasks - 23 mins.

    • Part 5 - Controlling Costs - 10 min.

    • Quiz - Chapter 3
  • 5

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

    • Assignment - Chapter 4

    • Part 1 - Search Methodology and Protocol - 28 mins.

    • Part 1a - Search Methodology and Protocol (cont.) - 20 mins.

    • Part 2 - Inspection of Computer System - 11 mins.

    • Part 3 - Chain of Custody - 12 mins.

    • Quiz - Chapter 4
  • 6

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

    • Assignment - Chapter 5

    • Part 1 - Rule 34 "Document" and ESI - 18 mins.

    • Part 2 - Native File, "Form or Forms" of Production and Rule 34 - 24 mins.

    • Part 3 - Procedural Rule Analysis of “Form” for ESI Disclosure - 16 mins.

    • Part 4 - Methods to Determine Form of Disclosure, Strategies, and Checklists - 15 mins.

    • Quiz - Chapter 5
  • 7

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

    • Assignment - Chapter 6

    • Part 1 - Privileges - 30 minutes

    • Part 2 - Inadvertent Disclosure, Non-Waiver Agreements Retrieval Procedure FRCP 26(b)(5)(B) - 26 mins.

    • Quiz - Chapter 6
  • 8

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

    • Assignment - Chapter 7

    • Part 1 - “Not Reasonably Accessible” - 21 mins.

    • Part 2 - ESI and Cost Allocation (Proportionality), Sampling, and Burdensome - 32 mins.

    • Part 3 - Relevancy, Overbroad and Protective Orders - 15 mins.

    • Quiz - Chapter 7
  • 9

    Chapter 8 - Certification of Production Efforts (Advanced)

    • Assignment - Chapter 8

    • Part 1 - Certification of Discovery Responses - Rule 26(g) - 8 minutes

    • Part 2 - Certification of Search Methodology, Protocol and Legal Hold Efforts - 16 mins.

    • Quiz - Chapter 8
  • 10

    Chapter 9 - Spoliation and Sanctions (Advanced)

    • Assignment - Chapter 9

    • Part 1 - Spoliation and Destruction of Evidence - Analysis - 10 mins.

    • Part 2 - Spoliation Remedies and Sanctions - 17 mins.

    • Quiz - Chapter 9

  • 11

    Final Exam and Survey

    • Survey

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