Voluntary Waiver At The Barrel Of A Gun
February 02, 2006
The federal government is no friend to the attorney-client privilege. That's just simply a fact. Perhaps no other factor lately has applied greater pressure on the privilege than the government's practice of insisting on waiver of the privilege as an indication of cooperation. Certainly other agencies have gotten into the act, but the Justice Department and the Securities and Exchange Commission (SEC) lead the charge in requiring corporate investigation targets to sacrifice confidentiality for the benefits of cooperation. <br>But for the corporate target, the immediate and practical implications of a government-demanded waiver are serious. A party's decision to waive the privilege can have significant consequences, not the least of which may be the inability to assert the privilege in downstream or parallel litigation that so often accompanies a government investigation.
Litigation Budgeting: No Crystal Ball Required
February 02, 2006
Litigation may be simply one of the costs of doing business, but it's no secret that the difficulty in predicting those costs adds to the frustration in corporate legal departments. Concerns about costs and how to control or predict them weave their way throughout a survey of corporate litigation trends commissioned for the second consecutive year by Fulbright & Jaworski L.L.P., and conducted by an independent research firm. This article discusses one of the most effective, yet surprisingly underutilized tools for managing litigation costs: the litigation budget from outside counsel.
Defining Metadata
February 02, 2006
Recently, the term metadata has become an electronic buzzword for litigators, their clients, IT personnel, courts and lawmakers. From the English dictionary to the proposed amendments to the Federal Rules of Civil Procedure, many information sources are attempting to define and clarify metadata, and its role in modern litigation.
Confidential Client Communications? Maybe Not
January 18, 2006
Former SEC Chairman William H. Donaldson noted in a March 5, 2004 speech that SOX was needed to deal with "a general erosion of standards of <i>integrity and ethics</i> in the corporate and financial world ... The acquiescence by the gatekeepers, like accountants, who turned their backs or actually condoned such accounting manipulation, combined with stock option incentives to management, fueled the short-term focus." (emphasis added).) Ironically, the SEC and the Department of Justice, which enforce SOX's criminal provisions, appear ready to burden the traditional ethical obligations of corporate legal counselors to keep client communications confidential in an effort to police the integrity and ethics of other corporate gatekeepers. To that end, the SEC imposes certain reporting requirements on corporate counselors, attempts to preempt state ethics rules, and DOJ prosecutors routinely pressure "target" corporations to waive the attorney-client privilege to obtain "cooperation" points. Corporate counselors must be aware of those initiatives to properly balance their competing obligations.
Non-Compete Agreements: What Every Corporate Attorney Needs to Know
January 03, 2006
Successful businesses want to protect their proprietary information, whether it is a "secret ingredient" or a customer list. Many companies seek to achieve this goal by requiring that all employees sign a uniform "non-compete" agreement in an effort to reduce the risk of economic harm when the employment relationship ends and an employee goes to work for a competitor. Businesses often are surprised, however, to learn that the agreements that they were counting on for protection will not be enforced by a court. This unpleasant result can be avoided through careful drafting up front. The key to drafting an enforceable agreement is to remember that there is no "one-size-fits all" document. The laws governing non-compete agreements vary from state to state, and understanding the nuances among the states will help attorneys with the drafting process.
'Save As Privileged' ' The Next e-Discovery Answer?
January 03, 2006
In general, the proposed rules will increase awareness of the discovery issues that are unique to electronic discovery and will require that the lawyers, the parties and the court focus early on the format in which electronic data will be produced in federal actions. Also, absent unusual circumstances, the new rules will protect parties from sanctions for failure to produce electronic data lost by routine, good faith loss of data and will protect parties from the need to produce inaccessible data under some circumstances.
Compelling Private Company Employee Information
January 03, 2006
There has been much recent press about the USA Patriot Act, and in particular the seemingly unlimited power of the Federal Bureau of Investigation to issue National Security Letters (NSLs) as part of its efforts to combat terrorism (under 18 U.S.C. '2709). NSLs are a form of administrative subpoena issued by the FBI upon self-certification and are shrouded in a cloak of secrecy. Specifically, Section 2709 permits the FBI to demand the production of certain records where the FBI certifies that the materials are sought to "protect against international terrorism or clandestine intelligence activities." On a more controversial note, Section 2709 also contains a gag provision, which prohibits the recipient of an NSL from ever disclosing that the FBI has sought or obtained information pursuant to an NSL. To date, Section 2709 has received little judicial scrutiny, with reported controversies focusing on NSLs issued to Internet Service Providers and libraries. Now, NSLs are being issued to private corporations, with the FBI demanding the production of records regarding employees.
EEOC Issues Q&A on Cancer in the Workplace
January 03, 2006
Earlier this year, the Equal Employment Opportunity Commission (EEOC) issued a set of questions and answers about cancer in the workplace and the Americans with Disabilities Act (ADA).<br>The Q&A does not contain much in the way of new information, but rather gives examples that help illustrate the position the EEOC will take on issues regarding cancer as a disability. Since these are the types of issues that often puzzle human resources managers ' and land on the desk of in-house counsel ' the EEOC's Q&A serves to provide some assistance on how to handle these issues.
Hotline
January 03, 2006
Employer cannot make assumptions in "regarded as disabled" casesThe Fifth Circuit has ruled that an employer may not maintain a blanket policy to deny…
The Best of MLF 2005: Looking Back at the 'Benchmark' Year
November 30, 2005
Well, it's been an exciting year here at <i>Marketing the Law Firm</i>. As with past practice, this month's issue will be a look back at the year that was. In this issue we will present February (the January issue recaps part of 2004) through July.
