Photo of Stephen M. Byers

Stephen M. Byers is a partner in the firm's White Collar & Regulatory Enforcement Group and serves on the group's steering committee. He is also a member of the firm's Government Contracts Group and E-Discovery & Information Management Group. Mr. Byers's practice involves counseling and representation of corporate and individual clients in all phases of white collar criminal and related civil matters, including: internal corporate investigations; federal grand jury, inspector general, civil enforcement and congressional investigations; and trials and appeals.

Mr. Byers's practice focuses on matters involving procurement fraud, health care fraud and abuse, trade secrets theft, foreign bribery, computer crimes and cybersecurity, and antitrust conspiracies. He has extensive experience with the federal False Claims Act and qui tam litigation, the Foreign Corrupt Practices Act, the Economic Espionage Act, and the Computer Fraud and Abuse Act. In addition to defense of government investigations and prosecutions, Mr. Byers has represented corporate victims of trade secrets theft, cybercrime, and other offenses. For example, he represented a Fortune 100 U.S. company in parallel civil and criminal proceedings that resulted in a $275 million criminal restitution order against a foreign competitor upon its conviction for trade secrets theft.

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 release issued after the meeting, but it remains to be seen whether the enormous gap between U.S. and EU notions of data privacy can be bridged through such an agreement.

In the EU, the privacy of one’s personal data is a fundamental civil right, whereas in the U.S. such privacy considerations are routinely subordinated in the context of law enforcement investigations and prosecutions. The EU’s stringent data protection rules have thus become a recurring sticking point in joint law enforcement efforts between the two governments because the U.S. has been unable to guarantee an “adequate” level of protection for data transfers as far as the EU is concerned.
Continue Reading U.S.-EU Framework Agreement on Data Protection in Law Enforcement Investigations Inches Forward

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 instruction at trial and even spawned criminal obstruction of justice charges. Now the district court in the civil litigation has awarded DuPont $4.5 million in attorney’s fees and expenses as an additional sanction, which was the full amount sought by DuPont.

The court’s opinion explains why the $4.5 million sanction – one of the largest fee-based spoliation sanctions to date – was fully justified. The level of effort expended by DuPont’s lawyers and vendors was driven in part by what the court described as the defendant’s “overall obfuscatory conduct” which resulted in “a long, and oftentimes tortuous, journey on the part of DuPont to get to the bottom of the alleged deletion of files and email items by key Kolon employees.” The lesson here of course is that one must be careful about waging a pitched battle over discovery into known spoliation given that the client will likely have to foot the bill. That is an entirely foreseeable outcome where the allegations have merit because an award of fees and expenses is a common spoliation sanction.
Continue Reading Court Awards $4.5 Million In Attorneys’ Fees and Expenses as Spoliation Sanction for Bad Faith Deletion of Email and Other ESI

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 privileges applicable to those materials. In entering the order, the court expressed dismay that the defendant had “just now discovered Rule 502(d), the use of which may have prevented the protracted litigation and discovery battles that have plagued this case for the past two years.”

In September 2012, Judge Facciola — who is widely regarded as a leading jurist in the field of e-discovery — admonished the defendant “for the inadequacy of its privilege log and attendant refusal to disclose documents that could not, in fact, be regarded as privileged.” The court had ordered the defendant “to begin production of certain documents, previously withheld under a claim of work product privilege, at a rate of 100 documents per day until complete, redacting only those portions of the documents that constituted true opinion work product.” In that same order, Judge Facciola graciously threw the defendant a life-line by noting sua sponte that he would enter a Rule 502(d) order if requested by the parties. Apparently faced with the burden of redacting and quickly producing hundreds of documents, the defendant accepted the court’s offer and requested such an order, admitting that it was “willing to disclose all of the requested documents ‘without redacting opinion work product,’ so long as disclosure would not amount to a waiver of the [defendant’s] right to assert a privilege when [the plaintiff] attempts to make use of those documents.” As promised, Judge Facciola entered an order affording the defendant the privilege protection it sought without having to redact the documents, but not without first resolving another dispute.
Continue Reading Court Invokes FRE 502(d) to Permit Intentional Production of Privileged Materials Without Waiver

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