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A new day is dawning for electronic discovery in corporate environments. Opposing counsels recognize that e-documents stored in proprietary formats or on multiple systems no longer mean that they are inaccessible.
The proposed amendments to the Federal Rules of Civil Procedure, which have been covered extensively in e-Discovery Law & Strategy, expand the rules in regards to e-discovery. Scheduled to go into effect on December 1, unless Congress intervenes to change them, examples of previous types of rulings that the amended rules would broaden include:
- In Rule 26(a)(1), the phrase 'electronically stored information' is added. This could require either party to locate information germane to the case even though the nature of the information is imprecise;
- In Rule 34(a)(1), the phrase 'stored on any medium' is added. This wording is designed to be flexible enough to cover all current technologies and flexible enough to encompass future changes and developments; and
- Rule 37(f) is an entirely new subdivision of Rule 37 and provides provisions for information lost during routine, good-faith operations. (From, Summary of the Report of the Judicial Conference. Committee on Rules of Practice and Procedure. Agenda E-18 Rules September 2005.)
As these rulings take effect, corporations will become susceptible to broader e-discovery requests ' and susceptible and subject to more of them. As companies respond to these requests, the companies' executives and counsel will awaken to the difficulties and costs of meeting the requests if they use existing access and search processes.
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.
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.
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.