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Practice Tip: 'It's NOT Electronic Paper'
Is data really different? Does the information we routinely manipulate, transmit and delete everyday pose fundamentally new issues with respect to evidence and discovery in litigation than the paper of the past centuries? As the courts and clients struggle with the growing complexities of electronic information, the federal judiciary has begun exploring proposals aimed at addressing the challenges of electronic discovery, including safe harbor provisions, clawback options and peculiarities of legacy data. While several of the current federal proposals are still open for comment, it is worth taking a moment to consider the fundamental properties of electronic data and how conventional thoughts on evidence do or do not apply. As comforting as it would be to think of electronic evidence as just digital paper, the reality is that there are some inherent properties of electronic evidence that make it fundamentally different from conventional evidence. Specifically, electronic evidence differs in quantity, duration, content and context from conventional evidence in ways that challenge many fundamental assumptions of discovery.
The quantitative difference of electronic information is obvious when compared to conventional evidence, but what many neglect to consider is that the quantity of electronic information is quickly approaching the limit of what humans can process in a realistic period of time. It is now not uncommon for a case to involve a large fraction of, if not more than, a terabyte of data. To put this in perspective, if you were to print out a terabyte of data from a typical office it would easily produce a stack of paper over 30,000 feet high. That is a scope of review that is formidable for any firm. Now imagine that same review 2 or 3 years hence as the amount of data continues to grow and the 3 to 5 terabyte cases become more common. How exactly can you organize a comprehensive review of that amount of data? How long will a meaningful review take? Will the concept of 'complete review of the evidence' be replaced by statistical methods as a means of practically dealing with this challenge, or will court timelines extend into decades. It's not just that there is more information than before; it's that there is so much more that the task reaches the bounds of practical review. This has as yet undiscovered implications for things as fundamental as the rules of evidence.
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.
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.
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.
How AI Has Affected PR
When we consider how the use of AI affects legal PR and communications, we have to look at it as an industrywide global phenomenon. A recent online conference provided an overview of the latest AI trends in public relations, and specifically, the impact of AI on communications. Here are some of the key points and takeaways from several of the speakers, who provided current best practices, tips, concerns and case studies.