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Managing Data And Anticipating Litigation
In today's digital world, corporations must manage data in a manner that mitigates legal risk and reduces the likelihood of sanctions for failure to safeguard and preserve electronically stored information (ESI) that is potentially relevant to a legal or regulatory proceeding. Approximately 40% of all e-discovery cases in 2009 involved claims for sanctions against parties that allegedly failed to comply with discovery obligations. Of the sanctions cases, 67% addressed an alleged failure to properly preserve ESI. See Kroll Ontrack's 2009 Year in Review Report, available at www.krollontrack.com/news-releases/?getPressRelease=61396. This growing body of statutory and common law regarding electronic discovery instructs litigants that the best defense against sanctions is to take proactive measures to fully comply with future discovery obligations. Ignorance or lack of preparation are no longer tolerated, and there is decreasing protection for preservation mistakes, oversights or intentional destruction activities.
Facing the Risks
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.