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Weighing the Benefits: How Much Weight Will Your Survey Have in Court?
As consumer surveys become increasingly common forms of evidence in matters involving copyright, patent or trademark infringement, so too do Daubert challenges that attempt to disqualify that evidence. In a previous article, our Analysis Group colleagues drew on our collection of over 300 U.S. court rulings to provide tips on how to conquer the admissibility hurdle.
However, getting admitted into court is no guarantee of success — you are not over the entire Daubert hurdle just yet. The next step is ensuring that your survey is given the appropriate weight, i.e., convincing the fact finders that your survey's results are dependable and useful.
Technical Flaws Are More Likely to Impact a Survey's Weight than Its Admissibility
As described in our first article in the July issue (see, "Survey Says: Tips on Getting Over the Daubert Hurdle"), some survey flaws can be fatal, leading to exclusion under Daubert and causing real harm to a case and potentially to the credibility of the expert who submitted the excluded survey. However, in other instances, even surveys that have been found to suffer certain technical flaws may ultimately be admitted into evidence. This is especially true when the court concludes that the flaws identified in the Daubert briefings have more bearing on a survey's weight (or credibility) rather than on its admissibility.
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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
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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.