Five Steps For Forming An e-Discovery Group
January 26, 2006
Unfortunately, many businesses have not developed appropriate document-management plans prior to litigation, and many lawyers are not prepared to handle the complexities of e-discovery once litigation begins. Not a month (and sometimes not even a week) goes by without a new decision reporting sanctions for failure to handle electronic documents appropriately. <br>Simply put, businesses are spending too much money for poor results. And the problems likely to result from these risky approaches are much easier to see than the problems that may arise from not being ready for e-discovery demands: These businesses are unprepared for the realities, difficulties, expenses and risks of managing their electronic documents. That must change.
Perfecting The Document Destruction Policy
January 26, 2006
The Sarbanes-Oxley Act, along with recent decisions saddling corporations with huge fines and sanctions for failing to preserve evidence, have paralyzed many companies ' an unfortunate and costly result that is forcing companies to unnecessarily incur hundreds of thousands of dollars a year in document-storage and document-management costs. <br>But the good news is that destroying documents as part of a reasonable and carefully implemented document-retention program isn't only legal: It is a legal and business necessity given today's proliferation of corporate records.
In The Courts
January 26, 2006
Rulings of interest to you and your practice.
Employers and Employees
January 26, 2006
When I entered law practice in 1971, it was common in corporate criminal investigations for a single law firm to represent the target corporation and all its relevant employees. They hung together lest they hang separately. Over time, practice changed, and such joint-representation arrangements mostly disappeared. The old paradigm was succeeded by a new one, which recognized the separate interests of the corporation and each of its relevant employees, but also provided a large measure of mutual support and good will on the defense side. This paradigm, too, has been attacked by prosecutors and now has largely disappeared in major federal and some state investigations. It has been succeeded by a new, far harsher paradigm.
Over-Assertion of Attorney-Client Privilege
January 26, 2006
Buried deep within the 69-page superseding indictment in the KPMG tax fraud case lies a development with the potential to chill the assertion of the attorney-client privilege by defense attorneys in criminal conspiracy cases. In the conspiracy count in <i>United States v. Stein et al.<i>, the wrongful assertion of the attorney-client privilege has been charged as a central aspect of the crime itself, both as part of the means and methods of the conspiracy and as an overt act in furtherance. This aggressive charging decision may cause some members of the defense bar to think twice about asserting the privilege in close cases -- even where it is being asserted legitimately -- for fear that their claim of privilege may overreach, thus inadvertently implicating them in the underlying conspiracy.
'You've Got Mail' But Is It Privileged?
January 26, 2006
E-mail evidence is one of the newest and sharpest arrows in the government's quiver. In recent years the government has won several convictions based on little more than damning e-mail evidence. Nonetheless, people continue to use e-mail casually or even thoughtlessly, producing a data stream of potential admissions. To make matters worse, with the proliferation of portable e-mail devices, such as the ubiquitous Blackberry, the attention paid to each e-mail diminishes while the amount sent rises dramatically.
Recovery of Damages By Bankruptcy Bidders
January 26, 2006
The sale of a debtor's assets through a bankruptcy court supervised auction process has become more commonplace and, some theorize, under the amended law, may increase in popularity. Often, the process includes the use of a "stalking horse" agreement establishing a baseline of price and other terms for the sale of the assets. In return, the stalking horse bidder obtains certain bid protections (<i>ie</i>, break-up fees and/or expense reimbursements). At the close of the auction, either the stalking horse bidder either places the highest initial (or competing) bid or is outbid, maintaining a claim for the bid protections.
