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e-Discovery Revisited
The discovery process has long been the most expensive and often most contentious aspect of litigation. The focus of many discovery disputes has shifted over the last 10 years to disputes involving electronic data. This change in focus is rooted in the change in the manner in which we choose to communicate with one another. In the past few decades, commerce in general and the insurance industry in particular have moved away from paper-based communication toward electronic communication including e-mail because our customers, vendors and managers all require prompt, courteous and efficient communications. This change has resulted in significant consequences for the litigation process.
In December 2006, the Supreme Court adopted major changes in the Federal Rules of Civil Procedure. Many states have followed the lead of the federal courts by adopting similar rules. These changes were the culmination of a number of: 1) high profile cases involving spoliation of evidence and the court's inherent power to marshal discoverable evidence; and 2) studies and writings undertaken in the legal community, especially through an organization called the Sedona Conference. It has become clear that an organization must affirmatively address its electronic discovery obligations or face the consequences of its indecision at a later point in time. A prudent carrier's efforts to get its own “electronic house in order” will directly benefit the company as: 1) the company will be prepared for litigation and the resultant e-discovery scrutiny; and 2) the company will have greater flexibility in selecting litigation strategies by virtue of its preparation for e-discovery challenges.
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.
Compliance Officers: Recent Regulatory Guidance and Enforcement Actions and Mitigating the Risk of Personal Liability
This article explores legal developments over the past year that may impact compliance officer personal liability.