Foundation in the Digital Age: Getting experts, business records, social media, and other ESI into evidence (2024 Edition)

Jan I. Berlage | Gohn Hankey & Berlage LLP

Jan I. Berlage is a partner with Gohn Hankey & Berlage LLP. His practice focuses on general business litigation, ranging from commercial disputes to bankruptcy to intellectual property. Mr. Berlage has extensive experience in trials, arbitrations, mediations, and administrative hearings, including arguments before the Maryland Court of Appeals and the U.S. Court of Appeals for the Third and Fourth Circuits.

He has secured major jury verdicts and large settlements for both businesses and individuals, as well as successfully defended against multi-million dollar claims in both state and federal court. Prior to private practice, Mr. Berlage served as law clerk to the Honorable E. Stephen Derby, U.S. Bankruptcy Court for the District of Maryland.

He has taught pretrial litigation practice at the University of Maryland School of Law and served on the Board of Governors for the Maryland State Bar Association and the U.S. Commission on Civil Rights, Maryland State Action Committee. Mr. Berlage co-authored two books: Maryland Equine Law: A Legal Guide to Horse Ownership and Activities; and Judgment Avoidance: Exemptions and Lien Stripping. He is also a Fellow of Litigation Counsel of America as well as the American and Maryland State Bar Foundations, presents regularly at CLE courses, and has been the chair of numerous committees at both the national and state level.

He earned his B.A. degree, with honors, from Wesleyan University; his J.D. degree from the University of Virginia School of Law, where he served as executive editor of The Journal of Law & Politics; and is a member of Phi Beta Kappa.

I. The Basics | 11:00am – 11:10am

• ESI statistics
• Impact on legal profession

II. Handing of ESI | 11:10am – 11:20am

• Preparation
• Coordination
• Submission

III. Duty to Mitigate v. Duty to Hold | 11:20am – 11:30am

IV. Duty to Produce and Preserve | 11:30am – 11:50am

• Initial letters
• Preservation technics
• Sanctions
  • Burdens & costs of preserving
  • Discovery should be obtained from most convenient/least expensive
  • Undue burden, expense & delay
  • Extrinsic information and sampling
  • Nonmonetary factors
  • Technologies to reduce costs and burden

V. Protective Orders & Privilege Logs | 11:50am – 12:00pm

• Protective orders
• Privilege logs

Break | 12:00pm – 12:10pm

VI. Privileged ESI | 12:10pm – 12:20pm

• Inadvertent disclosure
• Clawback agreements

VII. Social Media | 12:20pm – 12:40pm

• Briefing
• How long Facebook, Twitter, Linkedln, etc. store personal data
• Preservation social media
• Obtaining social media records
• Restoring deleted posts

VIII. Metadata Made Simple | 12:40pm – 12:50pm

IX. Authenticity & Admissibility of Social Media Evidence | 12:50pm – 1:00pm

• Getting it in
• Keeping it out

X. Outcome | 1:00pm – 1:10pm