Data Law Insights

Data Law Insights

Legal insights on navigating privacy, data protection, cybersecurity, information governance, and e-discovery

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Clarifications Needed After DOJ’s New FCPA Policy

Posted in Criminal Law, Mobile Devices & Data, Preservation, Spoliation
The U.S. Department of Justice released revisions to the Foreign Corrupt Practices Act corporate enforcement policy on March 8, 2019. While intended to clarify the DOJ’s position on a number of hot-button issues, including its controversial stance on certain instant-messaging software, a closer look reveals that these changes fall short of answering several key questions… Continue Reading

The CLOUD Act and the Future of International Access to E-Evidence

Posted in Cloud Computing, Criminal Law, Cybersecurity / Data Security, Government Agencies, Preservation, Privacy
Attorney General Jeff Sessions and EU Justice Commissioner Věra Jourová have met twice over the last two weeks, signaling momentum towards a new EU-U.S. solution for the sharing of electronic evidence. These meetings occurred in the wake of proposed regulations on the sharing of electronic evidence in the EU, and the passage of the Clarifying… Continue Reading

2nd Circuit: Government Cannot Force Companies to Hand Over Communications Data Stored Overseas

Posted in Accessibility, Criminal Law, Government Agencies, Information Management, Privacy, Transnational Discovery
The Second Circuit today issued a much-anticipated ruling holding that U.S. firms are not required to turn over user data stored overseas, even in the face of a government warrant.  This decision arose from Microsoft’s December 2014 appeal of a civil contempt ruling against the tech giant for refusing to turn over the personal data… Continue Reading

Recent Conviction Illustrates How Obscure Federal Statute Can Be Used to Criminally Prosecute Those Who Design and Sell Devices and Apps Capable of Surreptitious Monitoring

Posted in Criminal Law, Cybersecurity / Data Security, Ethics, Government Agencies, Privacy
In an obscure case that could have broad implications, a judge in the Eastern District of Virginia sentenced the Danish CEO of two overseas technology companies to time served and a fine of $500,000 for the advertisement and sale of a mobile application capable of surreptitiously monitoring communications and other information on a mobile device.… Continue Reading

Hot Topics in Criminal E-Discovery

Posted in Criminal Law, Government Agencies, Privacy, Rules, Sanctions, Spoliation
As part of Crowell’s “Data Law Trends & Developments:  E-Discovery, Privacy, Cyber-Security & Information Governance,” Steve Byers and I examined the hottest topics in E-Discovery in Government Investigations and Criminal Litigation.  Our report begins on page 15, and explores recent trends in this rapidly expanding field and forecasts potential developments with Federal Rule of Evidence… Continue Reading

Court Holds That U.S. Government Can Seize Email Data Stored Overseas and Questions Applicability of Fourth Amendment to “Information Communicated Through the Internet”

Posted in Cloud Computing, Criminal Law, Government Agencies, Privacy, Transnational Discovery
In a remarkable decision addressing the reach of search warrants aimed at personal data stored by a third party in the cloud, a court ruled last week that an internet service provider (“ISP”) can be compelled to produce personal information located outside of the U.S. The decision by Magistrate Judge James Francis (S.D.N.Y.) denied Microsoft… Continue Reading

Second Circuit Affirms Conviction for Theft of Computer Code Under Federal Criminal Trade Secrets Statutes

Posted in Criminal Law, Cybersecurity / Data Security, Privacy
Last week, in United States v. Agrawal, the Second Circuit upheld a jury’s 2010 conviction of a former Société Générale trader under the Economic Espionage Act (EEA) and the National Stolen Property Act (NSPA). The three-judge panel unanimously affirmed the NSPA conviction, but split on whether the EEA conviction could stand in light of the… Continue Reading

Spoliation of ESI Charged as Criminal Offense Under Computer Fraud and Abuse Act

Posted in Criminal Law, Government Agencies, Preservation, Sanctions, Spoliation
In a prior post, I wrote about a criminal trade secrets theft case in which spoliation in related civil litigation was charged as obstruction of justice. I noted that “[t]he prospect of criminal charges for spoliation in civil litigation raises the stakes for civil litigants, particularly where a parallel criminal investigation is a possibility .… Continue Reading

U.S.-EU Framework Agreement on Data Protection in Law Enforcement Investigations Inches Forward

Posted in Criminal Law, Cybersecurity / Data Security, Privacy, Transnational Discovery
For more than a year, the United States and the European Union have been engaged in negotiations over a data protection framework covering trans-Atlantic law enforcement cooperation. Last week, U.S. Attorney General Eric Holder and EU Vice-President Viviane Reding met in Washington to discuss that and other topics. Both expressed optimism in a joint press… Continue Reading

Court Awards $4.5 Million In Attorneys’ Fees and Expenses as Spoliation Sanction for Bad Faith Deletion of Email and Other ESI

Posted in Criminal Law, Preservation, Sanctions, Spoliation
I have previously written about the spoliation litigation and sanctions in the DuPont v. Kolon trade secrets dispute, in which Crowell & Moring represents the plaintiff and which resulted in a $920 million jury verdict for our client DuPont. The deletion of ESI by the defendant in that case resulted in an adverse inference jury… Continue Reading

Court Invokes FRE 502(d) to Permit Intentional Production of Privileged Materials Without Waiver

Posted in Privilege/Rule 502, Rules
A recent court ruling illustrates the significant value of Federal Rule of Evidence 502 for preserving privilege in a cost-effective and expedient manner. In Chevron v. Weinberg Group, Misc. Action No. 11-409 (D.D.C.), Magistrate Judge John Facciola entered a Rule 502(d) order that allows the defendant to knowingly produce purportedly privileged materials without waiving any… Continue Reading

Spoliation in Civil Litigation Charged as Criminal Obstruction of Justice

Posted in Criminal Law, Rules, Sanctions, Spoliation
While spoliation sanctions are increasingly common in civil litigation, it is rare for such conduct to be charged as criminal obstruction of justice. But in an indictment unveiled last week, the Department of Justice did just that. In a trade secrets theft case, DOJ charged the defendant, Kolon Industries, Inc., with obstruction of justice, in… Continue Reading