Bolch Judicial Institute at Duke University School of Law
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Program Details

This two-hour virtual event will focus on the Third Edition of the Guidelines and Best Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality (“the Guidelines”), which will have been published in the weeks preceding the CLE by the Bolch Judicial Institute at Duke Law School (the same entity offering the CLE). Presenters will include Judge Paul Grimm (District Judge for the United States District Court for the District of Maryland), Judge Andrew J. Peck (Senior Counsel, DLA Piper LLP and previously United States Magistrate Judge for the Southern District of New York), Judge Lee H. Rosenthal (Chief United States District Judge of the United States District Court for the Southern District of Texas), Jennie Lee Anderson (Partner, Andrus Anderson LLP), and David Kessler (Partner, Norton Rose Fulbright LLP).

Judge Rosenthal has been involved in the drafting process of the Proportionality Guidelines since the First Edition was published shortly after the crucial 2015 discovery amendments. She was also involved in the drafting of this edition of the Guidelines, which was spearheaded by Judge Grimm, a longtime expert in the discovery world. Judge Peck was a pioneer and remains a leader in the field of e-discovery and proportionality, and the two attorneys serving as presenters are at the top of the field of e-discovery in the private sector.

In November 2014, the Duke Law Center for Judicial Studies, which became the Bolch Judicial Institute (the “Institute”) in 2018, held a conference on the discovery proportionality amendments with more than 70 practitioners and 15 federal judges. Drafting teams were subsequently formed, consisting of 32 practitioners, who worked for nine months on an initial draft set of Guidelines prepared by Judge Lee Rosenthal and Prof. Steven Gensler. Most Guidelines represented a consensus view, but a handful were not universally endorsed. A commitment was made to regularly update the Guidelines in the following years.

As part of that commitment, the Institute, with the ABA Section of Litigation, co-hosted programs on the amendments; in total, nearly 70 judges and 70 practitioners appeared on panels speaking to more than 2,500 lawyers. The programs presented an unprecedented opportunity to learn first-hand from the bench and bar how the amendments were working across the country.  The Second Edition of the Guidelines reflected those insights.

This, the Third Edition, in turn, reflects further learnings about discovery and proportionality in practice. The Institute convened another proportionality conference in June 2019, at which practitioners and judges reviewed and discussed the results of several studies evaluating the amendments. The studies covered a number of issues, including data from bench-bar special-focus groups, surveys of bar organizations and judges, and cost data from outside counsel and Electronically Stored Information (ESI) vendors.  These studies and discussions have contributed greatly to our appreciation of the guidelines and to our understanding of how the amendments are working in practice. A small working group led by Judge Paul Grimm, and including practitioners David Kessler and Jennie Anderson, gathered these insights, revised the guidelines, issued them for public comment, and made further revisions in light of the comments.

This CLE program presents an unparalleled opportunity to hear from those behind the scenes in the drafting of the Guidelines and from judges and attorneys with great expertise in the subjects of discovery, e-discovery, and proportionality. Topics will include the scope of discovery, the six proportionality factors for the parties and judge to consider under Rule 26(b)(1), the weight of these factors, evaluations of burdens in benefits in the proportionality analysis, requirements regarding various showings, communications, discovery responses, dealing with discovery disputes, and more. The course will also address how to implement several best practices to help streamline the discovery process and help ensure meaningful, fair discovery.

The course will offer a first look at the new edition of the guidelines, coinciding roughly with the release of the Guidelines a few weeks prior. Presenters will discuss the evolution of the guidelines over time, changes to the document in this edition, crucial takeaways from the Third Edition, key considerations in discovery strategy, relevant case law, cutting edge issues in electronic discovery, the effects of real-world changes on discovery (focusing on the COVID-19 pandemic), implementation of best practices, and future proportionality issues likely to be addressed in the subsequent editions. Experts from both the bench and bar will provide insights about general trends in discovery as well as specific examples that illustrate the various guidelines in the document. Attendees will emerge not just with a better understanding of the Guidelines, but also with a more complete sense of the course of discovery over time and current strategic considerations in the practice of law.

Registration Fee – $200

Your registration fee directly supports this program and CLE processing, as well as the Bolch Judicial Institute’s work to study and advance rule-of-law principles, judicial independence, and law reform through technology and innovation. As a non-profit institute, we are committed to keeping our programs accessible to all members of the legal community. For information about financial aid, please contact Kristin Triebel at kristin.triebel@law.duke.edu.

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