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Inside The Rules
The proposed amendments to the Federal Rules of Civil Procedure (FRCP) may be among the most significant changes ever to the code, simply because electronic discovery affects nearly every commercial litigation matter filed daily in the United States. Digital evidence has changed the litigation arena like no other evidentiary influence ' often turning what would otherwise be a nominal tactical dispute into the decisive battle in an entire lawsuit.
Most litigators and others connected to the activities of e-discovery agree that electronic discovery issues are complex and expensive. This premise is partially echoed in the report of the Civil Rules Advisory Committee. The Committee said on pages 2, 7 and 8 of its report that discovery of electronic information “is “more burdensome, costly, and time-consuming” than traditional discovery. The report also noted that:
There is great uncertainty as to whether and when a party may continue some or all of the routine recycling or overwriting functions of its computer system without risk of sanctions. Suspension of such operations can be prohibitively expensive and burdensome, and can result in the accumulation of duplicative and irrelevant data that must be reviewed and produced, making discovery more expensive and time-consuming. (See also, pp. 3, 17 of the report, and pp. 11 and 18 of the proposed amendments.)
The proposed rules take on issues of accessibility and adequate preservation, as well as the burden and cost of review. In addition, the proposed Rule 26(f) change calls for a discovery planning conference by the parties to discuss electronic discovery issues. To some extent, unfortunately, the proposed rule changes lag behind technological advances in business environments. For example, in the very early years of electronic discovery, there may have been occasions where draconian measures were taken to restore data ' particularly backup data. In recent years, however, it's no longer necessary to restore every backup tape or blindly restore “sample” tapes.
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.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.