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David Kessler

Head of Data and Information Risk, United States

David Kessler

New York

T:+1 212 318 3382

David Kessler is the Head of Data and Information Risk, United States and is a thought leader on issues involving discovery, data privacy, records management, and cyber security.  

Data Privacy:  David counsels clients on a range of data privacy matters focusing on compliance and cross border data transfers. David has provided advice regarding the Stored Communication Act (SCA), the Health Insurance Portability and Accountability Act (HIPAA), the Children's Online Privacy Protection Act (COPPA) and Family Educational Rights and Privacy Act (FERPA).  He  also provides advice to multinational clients regarding compliance with EU data protection and privacy laws including the General Data Protection Regulation (GDPR), where he works closely with his colleagues in the EU.

David is a Certified Information Privacy Professional (CIPP/E) through the International Association of Privacy Professionals (IAPP).

E-Discovery:  David acts as global discovery counsel for technology, finance, pharmaceutical and manufacturing companies where he helps them address litigation readiness, cross border discovery complications and acts as special discovery counsel in complex litigations. David focuses not only on tactical e-discovery issues in particular cases, but advises clients regarding strategic e-discovery portfolio management and data governance. For example, David has helped clients with emergency ex parte preservations orders; negotiations with opposing counsel regarding disaster recovery data; establishing that opponents had fabricated e-mails; and developed litigation readiness protocols

David has a particular focus on cross-border discovery.  David was recently the counsel of record for an amicus brief before the United States Supreme Court in United States v. Microsoft addressing the importance of comity in cross border discovery.  David has helped clients preserve, collect, process and transfer data from countries all over the world including, by way of example, Australia, Brazil, Canada, China, Germany, India, Italy, Nigeria,  Japan, South Africa, Spain, Switzerland, and the United Kingdom.  David is a contributor to and has been a faculty member for the Sedona Conference's (one of the world's leading e-discovery organizations) Work Group 6 on International Electronic Information Management, Discovery and Disclosure.

David is an adjunct professor at the University of Pennsylvania Law School where he teaches an advanced seminar on "E-Discovery."

Information Governance:  As part of his information governance practice, David has advised clients on where and how to store and manage data globally as well as how to integrate record retention, data security and e-discovery into the fabric of their IT infrastructure.  Beyond helping clients stand up information governance programs with policies and record retention schedules, David counsels clients on mobile device management, ephemeral data, disaster recovery and business continuity systems and the cloud.  He also has represented clients in defensible data disposition projects and examining the contours of their own dark data.

Cybersecurity:  As part of the firms cybersecurity team, David has represented clients both preparing for and responding to cyber incidents.  He has drafted and revised incident response plans (IRPs), run table top exercises and helped clients select and contract with forensic and public relations vendors.  David has advised clients about the scope of data breaches and the company's obligations to notify the appropriate authorities and the people affected by the breach.  Finally, David has represented clients in investigations by the FTC into suspected incidents and the quality of the clients' preparations and response.

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  • Education

    JD, University of Pennsylvania, 1997
    MS, Governmental Administration, University of Pennsylvania, Fels School, 1997
    BS, Massachusetts Institute of Technology, 1994

    David is admitted to practice in New York, New Jersey and Pennsylvania. David is also admitted before the U.S. Supreme Court, the Court of Appeals for the Federal Circuit as well as several District Courts.

  • Representative experience

    David's experience includes:

    • Represented the E-Discovery Institute, several companies and e-discovery thought leaders as amici curae in United States v. Microsoft addressing issues related to comity and cross border discovery
    • Representation of a large US based pharmaceutical company in its program to comply with the General Data Protection Regulation
    • Represented a large multinational manufacturing company brings its discovery and investigation process into GDPR compliance
    • Representation of a global Fortune 50 pharmaceutical company as its primary e-discovery counsel; he counsels the company on litigation readiness, information management, data privacy and international discovery issues
    • Representation of several global Fortune 100 companies with EU General Data Protection Regulation compliance focusing primarily on the processing and transfer of Personal Data in litigations and investigations
    • Representation of a global Fortune 100 company as its national e-discovery counsel; he counsels this client on tactical and strategic e-discovery questions as well as information management issues; some of the issues he presently handles include: (1) uncovering and prosecuting an opponent's use of fraudulent e-mails in a commercial litigation; and (2) managing e-discovery in the client's largest litigation in its history
    • Representation of a global Fortune 150 pharmaceutical company in a wide variety of e-discovery problems; a member of the company's global e-discovery team, David assists this client in tactical problems (e.g. vacating ex parte preservation orders and preparing and defending 30(b)(6) witnesses on IT and e-discovery topics) and strategic concerns (e.g. developing guidelines for counsel, reviewing and revising record management procedures and selecting appropriate e-discovery vendors)
    • Representation of a global Fortune 50 financial company in banking, insurance and asset management business with assets under management in the U.S. and abroad of approximately $2 to $3 trillion; he assists this client in revising and updating their global records retention and information security policies, and in implementing new preservation policies and litigation hold protocols
  • Admissions
    • New Jersey State Bar
    • New York State Bar
    • Pennsylvania State Bar
  • Rankings and recognitions
    • Chambers USA, Nationwide: Litigation: E-Discovery, Chambers & Partners, 2011-2018
    • Chambers Global, USA: Litigation: E-Discovery, Chambers & Partners, 2012-2018
    • E-Discovery Institute, Leadership Award
    • Who's Who Legal, E-discovery litigation, Law Business Research Ltd., 2015, 2017
    • New York Metro Super Lawyer, E-discovery, Thomson Reuters, 2013-2017
    • New York Metro Rising Star, Thomson Reuters, 2012
  • Publications
    • Co-author with Andrew Peck and Dawson Horn, "Creating Cooperation in Discovery: Musings on Building Trust," The New York Law Journal, April 2018
    • Co-author with Sean Topping, "Lessons of (the) Bard,"  ABA Conference:  Interplay Between EU Data Protection and US Discovery
    • Co-author with Shannon Capone Kirk and Daniel Regard, Chapter 9, "The Use of Advanced Technologies in Document Review," Chapter 10 "Forensics in Civil Litigation," and Chapter 11 "Format of Production," The Federal Judges' Guide to Discovery, Edition 3.0,  Washington, DC, 2017
    • Co-author with Andrea D'Ambra and Alex Altman, "Courts and Cooperation: Failure to Cooperate in E-Discovery," Legaltech News, January 31, 2017
    • Co-author with Andrea D'Ambra and Alex Altman, "Quantitative Analysis of Courts' Application of Cooperation in Discovery Disputes from July 1, 2008 to November 1, 2016," EDI, 2017
    • Co-author with Jamie Nowak and Sumera Khan, "The Potential Impact of Article 48 of the General Data Protection Regulation on Cross Border Discovery From the United States," The Sedona Conference Journal, Volume 17, Number Two, 2016
    • Author, "The Myth of Native Production: It's Not Cheaper (or Better) Than Tiff+," BNA, February 3, 2016
    • Co-author with Jami Vibbert and Alexander Altman, "Protective Orders in the Age of Hacking," New York Law Journal, March 16, 2015
    • Author, "A Comparative Analysis of Indian Privacy Law and the Asia-Pacific Economic Cooperation Cross-Border Privacy Rules," National Law School of India Review, 2014
    • Co-author with Keith Angle and Alexander Altman, Chapter 8 "ESI Search, Culling, and Review" and Chapter 22 "Privacy Issues," of Essentials of E-Discovery, Austin, TX,  2014
    • Co-author with Andrea D'Ambra, "Understand the Importance of a Global Discovery Platform," New York Law Journal, October 6, 2014
    • Co-author with Florinda Baldridge, "First Steps for Identifying and Preserving Electronic Information Checklist," Practical Law Company, August 21, 2014
    • Co-author, "The Complexities of Undertaking U.S. Style Discovery in Japan," The Sedona Conference, June 2014
    • Co-author with Tarifa Laddon, "Discovery on Discovery Demands Cost-Shifting," Law Technology News, June 13, 2013
    • Co-author with Keith Angle and Ted Bosquez, "Clawback Orders Do Not Trump Proportionality:  Parties Need to Review Documents and Courts Must Not Ignore the Costs," BNA, Digital Discovery & e-Evidence, May 23, 2013
    • Co-author with Keith Angle and Ted Bosquez, "Texas appeals court rejects unfettered access to defendants' hard drives," Fulbright Alert, March 14, 2013
    • Co-author with Keith Angle and Daragh Hoey, Chapter 27 "E-Discovery-Emerging Legal Issues and Guiding Law" of Prod. Liab. Litig., Rel. #4, 12/13, 2013
    • Co-author, "Cloud Guidance Rains Down in July," Fulbright Briefing, July 24, 2012
    • "Second Circuit Rejects Per Se Gross Negligence Standard for Failure to Issue a Hold Notice," e-Discovery and Information Governance, July 13, 2012
    • "Debunking the Seven Biggest Myths of Predictive Coding," LJN's Legal Tech Newsletter, June 2012
    • Co-author with Keith Angle and Emily Johnston, "Judge Peck Approves a Discovery Process That Includes the Application of Predictive Coding to Identify Responsive Documents," Fulbright Briefing, March 13, 2012
    • Co-author with Emily Johnston, "Is the Gap Between Perfection and Negligence Closing?: Stripping the Dicta Out of Voom v. Echostar," BNA, February 16, 2012
    • Co-author with Emily Johnston, "Discovery Subcommittee Holds Mini-Conference: No Consensus Reached On Preservation," BNA, September 29, 2011
    • Co-author with Emily Johnston, "No Consensus Reached on Preservation: Discovery Subcommittee Holds Mini-Conference on September 9, 2011," Fulbright Alert, September 12, 2011
    • Contributor, "Managing E-Discovery and ESI: From Pre-Litigation Through Trial," American Bar Association, August 2011
    • Author, "The Federal Circuit's Focus on No Lesser Sanction in its Landmark Spoliation Cases Should be a Reminder for Future Sanction Cases," Wall Street Lawyer, July 2011
    • Co-author, "Landmark Federal Circuit Decisions on Spoliation of Documents and Appropriate Sanctions," Fulbright Alert, May 16, 2011
    • Co-author with Robert Owen and Emily Johnston, "Search Terms Are More Than Mere Words," New York Law Journal, March 21, 2011
    • Co-author with Robert Owen, "Who Knows Best," Law Technology News, February 2011
    • Co-author, "Court Clarifies its Own Decision in a Key E-Discovery Case: Reasonable Steps, Not Perfect Result," Executive Counsel Magazine, August/September 2010
    • Co-author, "Once is Not Enough: The Case for Using an Iterative Approach to Choosing and Applying Selection Criteria in Discovery," EDRM White Paper, July 2010
    • Co-author, "Outlier or Harbinger?  Recent Case Invents New Preservation and Information Management Duties for Corporations," Digital Discovery & e-Evidence, May 2009
    • Co-author, "European Union Working Party Issues Opinion Regarding Guidelines for Addressing Conflict Between EU Data Protection Regulations and U.S. Discovery Obligations," Digital Discovery & e-Evidence, March 2009
    • Co-author, "New Federal Rule of Evidence 502 Offers Protections for Inadvertent Disclosure of Privileged Documents," Electronic Discovery Alert (DBR), September 2008
    • Co-author, "Production of Data Protected by Foreign Statutes," Digital Discovery & e-Evidence, September 2008
    • Co-author, "Is Personal Data Outside the United State 'Not Reasonably Discoverable?," Digital Discovery & e-Evidence, BNA, Vol. 8 No. 9, September 1, 2008
    • Co-author, "Recent Criminal Case May Shed Light on Several Civil Discovery Issues," Electronic Discovery Alert (DBR), March 2008
    • Author, "Torn Between Two Laws," Legal Times (Intellectual Property Supplement), October 2007
    • Co-author, "Preserving Privilege for In-House Counsel," Electronic Discovery Alert (DBR), October 2007
    • Co-author, "Courts Begin Interpreting the E-Discovery Amendments to Federal Rules of Civil Procedure: Two Recent Opinions on Not Reasonably Accessible Sources," Electronic Discovery Alert (DBR), June 2007
    • Author, "The Importance of IT Due Diligence," BI Report, April 2007
    • Co-author, "Summary of New Amendments to Federal Rules of Civil Procedure," Electronic Discovery Alert (DBR), November 2006
    • Author, "Electronic Discovery in Intellectual Property Litigation," Intellectual Property Today, March 2006
    • Author, "Spoliation in Capital Post-Conviction Proceedings: Theory of Spoliation in Habeas Corpus - Part II," The Champion, December 2005
    • Author, "Spoliation in Capital Post-Conviction Proceedings: Theory of Spoliation in Habeas Corpus - Part I," The Champion, November 2005
  • Speaking engagements
    • Panelist, GDPR: Impact Worldwide on Data Protection, Privacy, E-Discovery and Cybersecurity Conference, New York and Chicago, April 24 and 25, 2018
    • Panellist, Fourth Annual Innovation in E-Discovery Conference, New York, December 7, 2017
    • Moderator, "U.S. Discovery Law is More than Aerospatiale", Georgetown Advanced Discovery Institute, November 2017
    • Panelist, "Planning ahead — tactical considerations of GDPR compliance in investigation and litigation,"  EY Meeting, NY, November 2017
    • Moderator, "How Courts Consider Cooperation & How they Punish "Non-Cooperative" Parties," E-Discovery Institute Leadership Summit, October 11-13, 2017
    • Chair, Federal Judicial Conference & E-Discovery Institute, Third Annual Judicial Conference, October 10, 2017; Moderator, "Cross Border Discovery"
    • Chair, ABA Cross Border Institute: The Interplay Between EU Data Protection and US Discovery, Munich, July 2017
    • Moderator, "Moving Targets: Cross-Border Data Transfers for E-Discovery,"  ABA E-Discovery Conference, Chicago, March 2017
    • Moderator, "Topic #3. Cross Border Data Protection, Data Security & Privacy: Top of Agenda;" Panelist, "Topic #1. Technology 2017 including Case Study on 'Possession, Custody, or Control'"  Innovation in E-Discovery Conference, Chicago, November 29, 2016
    • Panelist, "Euro Pass: Accessing Cross Border ESI" Georgetown Advanced Discovery Institute, Washington D.C., November 11, 2016
    • Panelist, "Protective Orders, Meet the Hackers," EDI Leadership Summit, October 13, 2016
    • Moderator, "The Legal Tool Kit for Your Company in the Cloud: Office 365 & Beyond," EDI Leadership Summit, October 13, 2016
    • Moderator, "The New Rule 26(b)(1) Scope of Discovery: Proportionality Reigns," EDI's 2nd Annual Judicial Training Symposium, October 10, 2016
    • Presenter, "Litigation in the U.S.:  Is Your Company Ready,"  Munich, Germany September 29, 2016
    • Panelist, "Intersection of Records Management and Privacy," IAPP New Jersey KnowledgeNet, Bridgewater, New Jersey, September 16, 2015
    • Speaker, "Behind the Great Firewall of E-discovery in Asia," Webinar, January 2015
    • Chair, "The Exchange," Today's General Counsel Institute, Los Angeles, December 2014
    • Panelist, "BYOD—Privacy, Policy, and eDiscovery Issues Continue—What to Do?," Georgetown Law Advanced E-Discovery Institute, November 2014
    • Speaker, "Dark Data," Webinar, November 2014
    • Speaker, "Data Privacy Issues in Investigations Case Study," London, Paris, Munich, October 2014
    • Speaker, "Information as Asset and Liability:  How to Manage it Globally," London, Paris, Munich, October 2014
    • Chair, "The Exchange," Today's General Counsel Institute, Houston, September 2014
    • Speaker, "Defensible Data Disposition," Houston, September 2014
    • Chair, "The Exchange," Today's General Counsel Institute, New York, July 2014
    • Chair, "The Exchange,"  Today's General Counsel Institute, Chicago, June 2014
    • Chair, "The Exchange," Today's General Counsel Institute, San Francisco, March 2014
    • Chair, "The Exchange," Today's General Counsel Institute, Los Angeles, 2013
    • Speaker, "Preparing Your Company, Your IT Systems and Your Data for Cross- Border Investigations and Litigation," CGOC, London, October 2013
    • Speaker, "Preparing Your Data for Cross Border Investigations," Washington D.C., September 2013
    • Chair, "The Exchange," Today's General Counsel Institute, Houston, September 2013
    • Chair, "The Exchange," Today's General Counsel Institute, New York, July 2013
    • Chair, "The Exchange," Today's General Counsel Institute, Chicago, June 2013
    • Speaker, "eDiscovery as a Critical Component of Information Governance," CGOC, Houston, June 2013
    • Chair, "The Exchange," Today's General Counsel Institute, San Francisco, March 2013
    • Panelist, "E-discovery Circa 2015: Will Aggressive Preservation/Collection and Predictive Coding be Commonplace?," LegalTech, February 1, 2012
    • Panelist, "Ethics in E-Discovery," LegalTech, January 31, 2012
    • Panelist, "Using Cutting Edge Technology to Reduce Discovery Costs Without Getting Into Trouble," Fulbright Breakfast Seminar, December 15, 2011
    • Panelist, Plenary Session, "Corporate Approaches to Electronic Information Management: How to Manage Data and Prepare for Litigation in an Increasingly Mobile World," Georgetown Advanced E-Discovery Institute, November 17, 2011
    • Panelist, "Electronic Data and E-Discovery Litigation: What Every Internal Legal Department Needs to Know," General Counsel Forum at NYSE, November 15, 2011
    • Chair, Executive Counsel Institute on E-Discovery, Houston, Chicago, New York, Los Angeles, 2011
    • Panelist, "Predictive Coding," Masters Conference, October 4, 2011
    • Panelist, "E-Discovery in the Cloud: One Year Later," Masters Conference, October 3, 2011
    • Panelist, "Developing Selection Criteria," 15th Annual Electronic Discovery and Records Retention Conference, New York, October 2011
    • Speaker, "Social Media and E-Discovery," IQPC Oil & Gas Conference, Houston, October 2011
    • Panelist, "International Discovery for Pharma," IQPC E-Discovery for Pharma, Biotech and Medical Device Companies, Philadelphia, September 2011
    • Panelist, "Cirrus, Stratus and Cumulus: Three Perspectives on Cloud Computing," Compliance Week Web Seminar, March 23, 2011
    • "Where Is My Ripcord? What Counsel and Compliance Officers Need to Do When They Find Out the Company's Data Has Been Shoved into the Cloud," Fulbright & Jaworski L.L.P. Web Seminar, March 1, 2011
    • Moderator, "Evidence, Authenticity and Admissibility," Georgetown Law Advanced E-Discovery Institute, Washington D.C., November 18, 2010
    • Panelist and Moderator, 14th Annual Electronic Discovery and Records Retention Conference: Achieving Proportionality, New York, Chicago and San Francisco, October, November & December 2010
    • "Effective Cost and Risk Containment Steps," and "Real ECA and Risk Analysis," Executive Counsel Institute's E-Discovery for the Corporate Market, New York City, July 12-13, 2010
    • "Social Networking and Data Management: E-Discovery and Data Privacy in the Cloud," ACC Chicago, April 2010
    • "Achieving a Cost Efficient, Defensible Document Review," and "Best Practices for Successful Multinational E-Discovery," LegalTech, February 2010 
  • Memberships and activities
    • American Bar Association
    • Pennsylvania Bar Association
    • Philadelphia Bar Association
    • University of Pennsylvania Inn of Court, former member
    • The Sedona Conference (Working Group 1, 6 and 11)
    • University of Pennsylvania School of Law, Adjunct Professor
    • Cloud Security Alliance, Chairman of the Subcommittee on E-Discovery