The Devil’s in the Details: Recent Developments in Privilege Law and ESI Discovery (Presented by The Federal Bar Association Annual Meeting & Convention 2025 sponsor Ciresi Conlin LLP)

Barry Landy, Partner and Chair of the Business Litigation Group | Ciresi Conlin LLP

Barry is a nationally recognized trial lawyer with deep experience in complex disputes involving trade secrets, fiduciary duties, and contracts. He has secured landmark results for clients—including a $375 million settlement in a five-year litigation battle involving claims of breach of contract and trade secret misappropriation, a $27 million resolution in a royalty dispute, and a $12.5 million recovery for ERISA plaintiffs. Known for working seamlessly with corporate counsel and business leaders, Barry brings strategic judgment and practical problem-solving to high stakes matters. Outside the courtroom, he contributes to his community through service on the boards of the Northside Achievement Zone, Minnesota Zoo, and the Federal Bar Association’s Minnesota Chapter. He has received accolades from Chambers USA, Benchmark Litigation, Minnesota Lawyer, and Super Lawyers.

Heather McElroy, Partner | Ciresi Conlin LLP

As an experienced trial lawyer and legal advocate, Heather represents businesses and individuals in high-stakes breach-of-contract, class-action, employment, and financial matters. Heather also has significant appellate experience and has argued appeals before state and federal courts nationwide. Heather has provided many hours of service to the community through her work with the Advocates for Human Rights and the Immigrant Law Center and in spearheading first-of-its-kind Minnesota Environmental Rights Act litigation to protect Minnesota’s precious natural resources. Heather has been an adjunct professor at the University of St. Thomas School of Law and a mentor in the award-winning UST Law Mentor Program. She serves on the board of the University of St. Thomas School of Law, the Fund for Legal Aid, and as Board Chair of the Ciresi Conlin Foundation.

I. Foundational Privilege law: Origins of the predominant purpose test and how different circuits articulate it | 2:00pm – 2:30pm

• Practical pitfalls: In-house counsel wearing dual hats and how courts scrutinize emails/communications.
• Drafting & communication strategies: How to frame advice so that its legal purpose is clear.
• Recent cases: Highlight rulings where privilege was lost because the advice was deemed business in nature.

II. E-Discovery: Employer Obligations when Discoverable ESI Resides on Employee Personal Devices | 2:30pm – 3:00pm

• Rule 34 “Control” Test: Legal Right or Practical Ability
• Reconciling the Case Law: A review of recent federal court decisions
• Practical tips: Minimizing the burden of mobile device collection
• Lost ESI: Will my client face sanctions for loss of mobile device data?