Evidence

Individual employees often act pursuant to advice from their in-house counsel. If named as a defendant in which her action is challenged, the employee may want to assert advice of corporate counsel as a defense. But the privilege belongs to the employer, not the employee, and the employer may refuse to waive the privilege. Can the court abrogate the employer's privilege over the objection of the employer, and if so under what circumstances?

How significant is the threat of fabricated digital evidence that can alter the outcome of a case? In today's wired workplace, it's considerable.

What are the document dump rules that apply today? And how does the Brady rule apply to this evolving area of criminal practice? This article will address these issues.

Internal corporate investigations can be, and frequently are, privileged. However, it is difficult to square that concept with the recent spate of federal court opinions that have concluded that cybersecurity forensic reports generally are not privileged.

When law enforcement seeks to compel a subject to provide a passcode to allow them to rummage through a cellphone, courts have not spoken with a unified voice. Some, including New Jersey's highest court, have arrived at the dubious conclusion that requiring an individual to communicate cellphone passcodes to the government does not warrant Fifth Amendment protection. Commentators had hoped that the U.S. Supreme Court would reject that expansive view, however, the Supreme Court declined to wade in, seemingly guaranteeing that continued uncertainty on this critical issue will continue to bedevil criminal practitioners.

A recent Federal Circuit decision denying a petition for a writ of mandamus should serve as a cautionary tale and reminder for corporate entities regarding the critical importance of preserving documentary evidence in a timely and appropriate manner.

As survey evidence has become increasingly common in litigation, it is important to remember that not all surveys are made the same. It's important to be able to identify the right survey methodology for the matter at hand. Third in a series

Social media evidence can be acquired both informally — through an attorney's own investigation or from the client — or more formally through the use of discovery and the rules of discovery. While each gives rise to practical and ethical issues, this section will focus on informal methods of acquisition.