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David Kessler L’97 discusses e-discovery and how parties in litigation handle data

November 20, 2014

In this video feature, Lecturer David Kessler L’97 highlights how the nature of civil discovery has changed with computers and e-mail dominating business and personal life.

In this video feature, Penn Law Lecturer David Kessler L’97 highlights how the nature of civil discovery has changed with computers and e-mail dominating business and personal life. Exploring why it is important for attorneys to know how to request, identify, preserve, collect, process, review and produce electronically stored information (“ESI”), Kessler’s class is designed to teach law students about the nuances of the quickly evolving world of e-discovery and practical discovery procedures.

 

 

Transcript

My name is David Kessler. I am an adjunct professor here at Penn Law School. I have been lucky enough to teach e-discovery for the last four years.

E-discovery is really about how parties in litigation handle data. How they take all the data they have in the ordinary course of business — on their computers, on their servers, up in the cloud, on their smart phones — find what is relevant to the dispute, what they have to produce for their side and what they actually want to use to advocate their position, and then go through it, hopefully, as cost effectively as possible, trimming it down and getting it into the right format, so that it can be presented to both to their opposing party and the court.

It is a $6 billion dollar industry here in the U.S. and litigators and trial attorneys who understand the digital footprint and digital data are at a much better position, not only to advocate for their client, but to do so cost effectively.

We work through things like how do you develop search terms; how do you use machine learning to find data; what are your requirements to actually forensically image a hard drive or a disk; how do people use dropbox to steal data? And we try to work through as many of these examples as we can.

One of the biggest challenges in my working life is dealing with the fact that data doesn’t respect political, geopolitical boundaries. It goes wherever it needs to go to, for whatever purposes it needs to be used, and it is very hard for companies to do a good job controlling it. However, not every country respects the U.S. view of discovery. And so, that can be a major challenge. A lot of other countries have much more rigorous and complete data privacy laws, and so that tension can be a real problem for companies who are trying to comply with the U.S. discovery, but simultaneously comply with various data privacy laws all around the world like the E.U. Data Protection Directive.

And now, there is so much more going on as we see cyber security and data security and data breach are becoming a much more real, significant risk to our organizations. So, we are just touching the surface of these issues now. And we try to cover all of that, but in a very practical way so that when all of my students leave my class they can immediately apply those real world experiences to their first client, that’s the real hope.

 

Transcript has been edited for length.