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The Threat of Evidence Destruction
In high-technology disputes, a patentee must secure a thorough understanding of often complex and subtle technologies in accused devices to prove patent infringement. Despite a patentee's best efforts to obtain proof of infringement, very often the most convincing evidence of patent infringement ' for example, proprietary design documents of the accused device ' lies within the possession of the alleged infringer itself. The survivability of that core evidence, however, can be under constant threat due to, for example, periodic purging of information pursuant to routine business practice or even bad-faith spoliation efforts by the alleged infringer. The risk to electronic evidence is especially grave because of its susceptibility to rapid erasure. Clearly, the threat of evidence destruction may seriously jeopardize the ability of a patentee to prove its case.
In this article, we examine judicial and other mechanisms in the United States and China that a patentee can utilize to safeguard evidence under the alleged infringer's control. In the United States, patentees need not wait the protracted time required for commencement of formal discovery to seek evidence under immediate threat of destruction. In China, which lacks a judicial construct precisely analogous to American discovery, patentees can employ special judicial and administrative measures even prior to commencement of suit to secure evidence in the hands of the alleged infringer.
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.
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.
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.