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e-Discovery Today
Since their invention more than 50 years ago, we have come to rely on computers to keep track of virtually every facet of our lives. Courts have acknowledged the central role of computers, understanding that individuals and corporations have used them to cut costs, improve production, enhance communication, store countless data, and improve capabilities in every aspect of human and technological development. Given the central role of computer technology in our personal and professional lives, discovery requests for electronically stored information have become commonplace. The costs associated with discovery frequently escalate when the information sought is stored electronically, because retrieval is often more complicated and nuanced than the production of hard copies of documents. Not surprisingly, the disclosure and production of electronically stored information is often the subject of discovery disputes.
Federal Rule of Civil Procedure 26(a)(1)(B) provides that mandatory initial disclosures should include a copy or description of all “documents … data compilations … and tangible things” in the possession of the disclosing party. Fed. R. Civ. P. 34 allows for any party to serve a request on another party to produce or make available for inspection “documents,” which include “data compilations from which information can be obtained,” and “tangible things” within the producing party's control. In addition, the 1970 Advisory Committee Notes to Fed. R. Civ. P. 34 provide that the rule amendment to include “data compilations” as a sub-category of “documents” was effected to account for “changing technology.” Some state courts follow similar rules.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Compliance Officers: Recent Regulatory Guidance and Enforcement Actions and Mitigating the Risk of Personal Liability
This article explores legal developments over the past year that may impact compliance officer personal liability.