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Waiver of Corporate Privilege By An Individual Defendant
Benjamin Rosenberg
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?
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You Won’t Know It When You See It: The Challenges of Fabricated Evidence in the Digital Age
John G. Browning and Jonathan Bailie
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.
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21st Century Data Dumps and the ‘Brady’ Rule
Peter A. Crusco
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.
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Why Are Courts Making Cybersecurity Forensics Reports Not Privileged?
David P. Saunders
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.
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Robert J. Anello and Richard F. Albert
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.
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The Intellectual Property Strategist
Looking Ahead to Avoid Spoliation Sanctions
Daniel J. Melman and Sarah Benowich
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.
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The Intellectual Property Strategist
Which Method Is for You? Not All Surveys Are Made the Same
Laura O’Laughlin, Harriet Ho and Duy (Joey) Duong
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
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Online Extra:
Social Media: Questions of Admissibility And EthicsKhizar A. Sheikh, Lynne Strober and Jennifer Presti
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.
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Medical Malpractice Law & Strategy
Daubert Motions Really Do Work
John L. Tate
Part Two of a Three-Part Article
The starting point for any successful challenge under Federal Rules of Evidence (FRE) 702 and Daubert is the form and content of the witness's disclosure under Federal Rules of Civil Procedure (FRCP) 26(a)(2). Here is all you have to know.
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Product Liability Law & Strategy
Daubert Motions Really Do Work
John L. Tate
Last month, the author described two of his six tips for achieving success with Daubert motions. Here, he concludes with four more.
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