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The Impact of Technology on Case Law under the 2006 FRCP Amendments
The 2006 amendments to the Federal Rules of Civil Procedure ('FRCP') contain a host of technology-oriented standards and procedures. Accordingly, it is not surprising that the case law in the wake of these amendments reflects the unstoppable march and advancement of computer technology. This article illustrates some of the most important ways in which this technology has influenced judicial opinions regarding electronically stored information ('ESI') under the new rules, including:
- Increased use of forensic preservation and collection;
- Strategic control of search protocols;
- Definition of 'reasonably accessible' ESI sources; and
- Expanding scope of potential sources of relevant ESI.
Forensic Preservation and Collection
ESI is often collected logically (i.e., backup or file copy) by client IT resources rather than forensically (i.e., complete bit-by-bit copy), under various rationales, e.g., that the client should not have to produce deleted ESI recoverable only through forensic imaging, or that metadata that could be altered by logical copying is irrelevant.
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.