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Seminar Title: Electronically Stored Information: What’s Under Lock & Key?
Instructor: Stevens Miller, Esq.
2012 Seminar offered via live toll-free conference call:
Aug 30 (4-6pmET), Sep 24 (1-3pmET), Oct 24 (4-6pmET), Nov 28 (1-3pmET), Dec 13 (1-3pmET)
This seminar offers guidance on the discovery of electronically stored information (“electronic documents”) following the changes to the FRCP made in 2006, and related case law.
Credit Hours: 2 CLE Hours (General)
AL, AR, CA, CO, DE, GA, IA, IN, KS, MS, NC, NJ, NM, NV, NY, OH, PA, SC, TN, TX, VA, VT, WA, WI: 2.0 hrs. general
MO, WV: 2.4 hrs. general
OK: 2.5 hrs. general
NJ: This program has been approved by the Board on Continuing Legal Education of the Supreme Court of New Jersey for 2 hours of total CLE general credit.
This program can be applied towards the 9 Substantive Hours of Continuing Professional Development (CPD) required by the Law Society of Upper Canada. Please note that this program is not accredited for Professionalism hours or for the New Member Requirement.
Dissemination: Materials sent via e-mail
1.00 hr. Updates on Issues
I. Traditional versus Emerging issues
A. Presumptions of symmetrical costs.
B. Effect of electronic storage on discovery.
C. Cost-shifting under Rowe and Zubulake.
II. FRCP approach to ESI discoverabilty
B. Cost versus scope
C. Near and far storage: marking the line with tape
III. Effect of Technology on the Legal Standards
A. Storage medium and burden
B. Hardware and software / currency and obsolescence
C. Expertise requirements
a. availability in-house
b. outside assistance
c. authentication and preservation issues
IV. Tactical issues
A. Special orders
B. Prospective preservation duties
C. Claw-back rights
D. Voluntary limitations of scope
C. Independent experts / special masters
VI. Sources & Resources
1.00 hr. Hypothetical Cases
VII. Applicability to expert work-product
VIII. Work-product redux: what is a “draft”?
IX. Preservation and obsolescence (loss of expertise)
X. Finding your way (no index to backup tapes)
XI. The Backwards Scope (discoverability v. duty to pay)
XII. Multiple copies (what does the extra copy really show?)
XIII. The Camel's Nose (using selective sampling)
XIV. Beyond the paper chase (paper v. .pdf v. native)
2 hrs. = Total CLE Credit (General)
Presenter: Stevens Miller, Esq.
Amherst College, BA, Physics, cum laude, 1980
Stevens Institute of Technology, MS, Computer Science, 1988
New York Law School, JD, cum laude, 1992
· Bell Communications Research, Consultant to Wideband Applications Research Department technical staff
· Union Bank of Switzerland, Consultant to decision-analysis-and-support technical staff.
· Litman, Asche, & Gioella, of-counsel on criminal matters involving computers.
· DSFX International, Director, Technology and Online Forensics Group, providing computer forensics and electronic discovery support to business clients.
· Data Forensics Labs of Northern Virginia, Inc., Founder, providing expert testimony regarding computer-based evidence, software analysis, and electronic discovery issues.
· Member, Board of Advisors and guest lecturer for ECPI College of Technology, computer forensics courses for criminal justice degree track.
"Why Can't Our Guys Do This?" SC Infosec Opinion Wire, July 2003. (Ernst & Young "Know Fraud Newsletter," November 2004.) Comparative analysis of in-house computer forensics efforts and outside consultants.
"Expert Testimony from the Defense Point of View," High Technology Crime Investigation Association Southeast Cybercrime Summit, February 2003. Paper presented as part of professional conference for HTCIA.
"The Computer as Witness," American Society for Industrial Security, March,2001. Paper presented as part of ASIS professional certification seminar.
"Advanced Internet Investigations," Glasser Legal Works 2000, March 2000. Various techniques for supporting investigations by using the internet.
"Tracking Down E-Mail Evidence," New York Law Journal, May 1998. Survey of complicating factors that can arise in searches for evidence contained in electronic mail
"But For, Not," New York Law Journal, December 1993. Use of exclusion operators in online legal research.
"The Micro-Computer as a Real-Time Autocorrelator." American Journal of Physics, December 1982. Hardware and software system to accumulate power spectra from laboratory sensors. (co-author)
· New York State Bar, admitted 1992, in good standing.
· U. S. District Court, Southern and Eastern Districts of New York, admitted 1994 and 1997, in good standing.
· Virginia State Bar, admitted 2002, in good standing.
· Past founding member, Committee on Technology and the Practice of Law, Association of the Bar of the City of New York, 1993. (Co-chair, Internet Subcommittee.)
· Past member, Committee on Science and the Law, Association of the Bar of the City of New York, 1994.