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Virtually every directors' and officers' ('D&O') insurance policy contains personal conduct exclusions. Insurers frequently rely on such exclusions to deny or limit coverage. For example, in many of the recent claims involving financial restatements or stock options, D&O insurers have asserted that the personal conduct exclusions, such as those relating to illegal profit, deliberate fraud, and deliberate criminal acts, diminish or preclude coverage. Although insurers frequently rely on these personal conduct exclusions, the personal conduct exclusions are, in practice, limited in scope and application. This article highlights some of the key limitations.

Court Finds 'Cut-and-Paste' Chat Room Transcript Inadmissible Evidence

Recent court rulings in e-discovery.

Many articles talk about the new e-discovery rules, but few address how to use electronic information in examining witnesses. Electronic discovery has changed not just the rules of document production, but also how to use these materials when questioning and preparing witnesses. Here are some ideas on preparing for witness questioning.

A federal magistrate's order that stops a Web site from routinely tossing relevant data could, if replicated, carry broad e-discovery implications. Magistrate Judge Jacqueline Chooljian's ruling in late spring required TorrentSpy, a widely used indexing Web site that provides users with forums for comment and operates on a peer-to-peer protocol, to turn over customer data only ephemerally kept in its computers' random access memory, or 'RAM.' The ruling could result in floods of similar requests in other civil cases.

In many instances, an insured does not comply with the terms of every condition stated in a policy. Sometimes this is because the insured is not aware of the particular requirements of the policy, sometimes it is because a carrier has not required (or has waived) compliance, and sometimes it is because it is simply not practical, or possible, to comply with all of the requirements of the conditions. In many of these circumstances, insurance carriers reserve a right to deny coverage, or deny coverage on the ground that an insured has failed to comply with one or more conditions in the policy. However, whether or not an insured has complied with all of the particulars of a condition in a policy does not determine whether the insured actually forfeits coverage under the policy.

Now that the Federal Rules of Civil Procedure have been modified to acknowledge explicitly electronic information's role in contemporary legal disputes, the uneasy process of adapting rules written in the era of typewriters and mimeographs to a world of e-mail and metadata has been replaced by a new task: determining how the recent amendments have ' and have not ' altered the legal landscape concerning electronic discovery.

For years, insurers have invoked the so-called 'late notice' defense under New York law, with relatively frequent success, to deny insurance coverage to insureds in circumstances in which the insured provides notice that is not timely under New York's traditional 'no prejudice' rule. Under this 'no prejudice' rule, an insurer generally need not show any prejudice suffered by the insurer as a result of an insured's untimely notice of an occurrence or claim giving rise to liability. Insurers have been able to cite certain New York case law stating that, with a few exceptions, an insurer may avoid coverage if the insured's notice was untimely on the theory that notice is a condition precedent to coverage under the policy. <i>See, e.g., Security Mut. Ins. Co. v. Acker-Fitzgerald Corp.</i>, 293 N.E.2d 76, 78 (N.Y. 1972); <i>American Home Assurance Co. v. International Ins. Co.</i>, 684 N.E.2d 14, 16 (N.Y. 1997). This insured-unfavorable rule of law, however, appears to be in the process of changing. Recent New York case law indicates a shift away from a 'no prejudice' rule, and an even more recent proposed state statute would permit an insurer to deny insurance coverage only in circumstances in which the insurer could 'demonstrate that it has suffered material prejudice as a result of the delayed notice.' For these reasons, New York clearly appears to be moving toward the large majority of other states, which require an insurer to demonstrate material prejudice as a predicate to avoiding coverage in the context of the late notice defense.

Make rejection work for you. I've often heard inside counsel bemoan the fact that most lawyers do not follow up with them after losing a rfp competition. They have almost as much investment in the rfp and selection process as outside counsel and frequently indicate that they learned alot of helpful information from the competitors. Yet they may not hear from the "losers" for years. The key here is to address the fact that they&#133;

Make rejection work for you. I've often heard inside counsel bemoan the fact that most lawyers do not follow up with them after losing a rfp competition. They have almost as much investment in the rfp and selection process as outside counsel and frequently indicate that they learned alot of helpful information from the competitors. Yet they may not hear from the "losers" for years. The key here is to address the fact that they&#133;