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The Federal Stored Communications Act: Third-Party Subpoena to E-mail Service Provider of Anonymous Party Ruled Invalid
Are electronic records maintained by an electronic communications service provider fair game for discovery in civil litigation? In O'Grady v. The Superior Court of Santa Clara County (Apple Computer, Inc.), 139 Cal. App. 4th 1423, 44 Cal. Rptr. 3d 72 (Ct. App, 6th Dist. 2006), a California state appeals court quashed a civil subpoena seeking e-mail records from an e-mail service provider, citing provisions of the federal Stored Communications Act ('SCA'), 18 U.S.C. ”2701-2712, that prohibit service providers from disclosing the contents of stored electronic communications. The ruling is controversial because it appears to be the first time, in the 20 years since the enactment of the SCA in 1986, that a court has held that the Act prohibits civil litigants from obtaining discovery of electronic communications from providers of e-mail and other electronic communications services, even when a court has reviewed and approved the subpoena.
The issue was raised during Apple Computer's highly publicized effort to learn the identity of the anonymous individuals who were responsible for leaking the company's confidential new product information to Web site operators who ultimately posted it publicly on the Internet. Apple filed a 'John Doe' suit against the anonymous leakers and then proceeded to seek discovery that might reveal their identities. Presumably, at least one of the leakers (or the only leaker) was an Apple employee, but Apple asserted that its own internal investigation had failed to reveal the source of the leak.
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.