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Practice Tip: The Dilemma of Backup Tapes in Mass Tort Litigation
Parties involved in litigation have an obligation to preserve relevant information in existence at the time the duty to preserve attaches and must preserve relevant information created thereafter. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (Zubulake IV). Developing a comprehensive preservation plan to meet these obligations is both critical and difficult. The analysis of whether particular data need to be preserved involves murky, and often contradictory, legal standards.
For companies involved in mass tort litigation, the question of whether a reasonable preservation plan includes an obligation to expend millions of dollars to preserve backup tapes is a particularly vexing issue. There is no definitive authority establishing the steps companies in mass tort litigation should undertake to fulfill their preservation obligations. Rather, corporate defendants must look to myriad cases arising out of contexts wholly different from the complex world of mass torts. In fact, the leading cases, Zubulake IV and Zubulake V, 229 F.R.D. 422 (S.D.N.Y. 2004) arise from small employment-discrimination litigation involving at most 10 key participants.
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.