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)

Jacob Siegel, Partnerp | Ciresi Conlin LLP

Jake is a partner at Ciresi Conlin, where his practice focuses on commercial litigation, complex civil litigation, and appeals. Jake represents individuals and local and national companies in a wide variety of sectors, from biotechnology to nonprofit organizations and from consumer goods to construction and heavy manufacturing. He litigates bet-the-company contract cases, trade secret disputes, and other intellectual property matters, and represents plaintiffs and defendants in class actions and other complex civil matters. He also briefs and argues appeals before all levels of appellate courts in Minnesota and around the country. Jake maintains an active pro bono practice representing indigent individuals and community organizations, with an emphasis on protecting the environment and the rights of children and working families.

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?