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A Magistrate Judge of the U.S. District Court for the Southern District of Florida held that an “oral download” of outside counsel’s interview notes to the SEC resulted in a limited waiver of protection under the attorney work-product doctrine over the underlying interview notes and memoranda. The decision is a significant one, and underscores one of the core challenges facing companies seeking to cooperate with the government during the course of its investigations.
In December 2017, a Magistrate Judge of the U.S. District Court for the Southern District of Florida held that an “oral download” of outside counsel’s interview notes to the Securities and Exchange Commission (SEC) resulted in a limited waiver of protection under the attorney work-product doctrine over the underlying interview notes and memoranda. Order on Defendants’ Motion to Compel Production from Non-Party Law Firm, SEC v. Herrera, et al., No. 17- 20301 (S.D. Fl. Dec. 5, 2017). The decision is a significant one, and underscores one of the core challenges facing companies seeking to cooperate with the government during the course of its investigations — namely, the delicate balance between seeking to maximize its potential to receive cooperation credit while avoiding an actual waiver of attorney-client or work-product privileges.
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Common Pitfalls In Personal Device Collection
By Marjorie Peerce and Marguerite O’Brien
Both the DOJ and the SEC have made it clear that they will look at company BYOD policies when assessing how to resolve matters under their purview. To avoid pitfalls — and sanctions — counsel must take proactive steps to ensure proper preservation and collection of personal mobile data and verify that clients comply.
FCPA Compliance Guidance for Global Businesses
By Cole Callihan
The Biden administration and its Justice Department have established countering corruption as a core U.S. national security interest. Companies with any international operations should ensure they have a robust written policy and compliance program focused on anti-bribery and corruption.
Regulators Want AI Companies to Respect Antitrust and Consumer Protection Laws
By Karen Hoffman-Lent and Kenneth Schwartz
The new era of AI technology has ushered in competition concerns alongside consumer-protection fears. Accordingly, regulators and lawmakers are taking note of the AI craze and are keen on ensuring that companies involved in AI are respecting both antitrust and consumer protection laws.
Will the Corporate Transparency Act Smother the Cannabis Industry?
By Steve Schain
The CTA requires business entities to file information on their “beneficial owners” with FinCEN, which, in turn, may disclose it to domestic and foreign law enforcement agencies, prosecutors, judges and financial institutions.
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