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The Forgotten e-Mail Account
As many matrimonial law practitioners know, New York's laws concerning eavesdropping and the admissibility of evidence obtained while doing so often keep very relevant information out of the courtroom. Civil Practice Law and Rules (CPLR) ' 4506 provides that evidence obtained through the commission of criminal eavesdropping, as defined by Penal Law ' 250.05, is inadmissible in both civil and criminal cases. Penal Law ' 250.00 holds that a person is guilty of eavesdropping when he or she unlawfully engages in wiretapping or the mechanical overhearing of a conversation. The exception is when the person authorizing the use by the court of the recorded discussion was one of the participants in the conversation. Berk v. Berk, 70 AD 2d 943 (2d Dept 1979) (tapes of conversations may be accepted as
evidence if proof of consent of at least one party to the conversations is put into evidence).
It might seem intuitive then that a similar rule would apply to records of e-mail correspondence: If one party to the correspondence agreed to have it submitted to the court, it would be admissible, but the correspondence could not be used as evidence if neither of the people involved consented. However, according to one judge in Kings County, such permission is not needed, because e-mailed discussions, which can be saved for years, are not necessarily in transit when discovered. Thus, according to a strict interpretation of New York law, they also do not necessarily enjoy the same privacy protections that telephonic or otherwise spoken conversations do.
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.