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

In conjunction with the 2015 American Bar Association annual State of Criminal Justice publication, Louisa Marion and I have published a new chapter on “Digital Privacy and E-Discovery in Government Investigations and Criminal Litigation.” The article provides an in-depth look at many of the current and cutting edge issues raised by digital privacy

The recent decision in Brown v. Tellermate Holdings, out of the Southern District of Ohio, provides yet another valuable illustration of the critical need for litigation counsel to take reasonable steps to educate themselves about potentially relevant ESI in the possession, custody, or control of their clients and to take appropriate measures to preserve and produce that information. The case highlights, in particular, the pitfalls associated with cloud-based ESI (specifically, a common sales app called saleforce.com) as well as the severe sanctions that can befall those who make significant missteps, as the defendant and its counsel learned in Brown.

United States Magistrate Judge Terence Kemp observed early in his decision: “Discovery did not go smoothly.” The court’s recitation of the procedural history and discovery issues in the case soon reveal this to be a significant understatement. Judge Kemp ultimately sanctioned the defendant and its counsel for failing to preserve and timely produce ESI relevant to the plaintiffs’ age discrimination suit. In addition to awarding attorney’s fees and costs incurred by the plaintiffs in filing and prosecuting various motions, the court prohibited the defendant from introducing or relying on any evidence that it terminated the plaintiffs’ employment for performance-related reasons rather than age. Judge Kemp reasoned that the defendant’s discovery failings prevented the plaintiffs from obtaining discovery relevant to that critical issue.
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In just the last few years, most companies – big and small – have embraced the Bring Your Own Device (BYOD) movement at varying levels from allowing employees to access company email on their personal smartphones all the way to not issuing company-owned computers and instead having employees bring in their personal laptops to access

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

In conjunction with the 2014 American Bar Association annual State of Criminal Justice publication, Louisa Marion and I have published a new chapter on “E-Discovery in Government Investigations and Criminal Litigation.” The article provides an in-depth look at many of the current and cutting edge issues raised by e-discovery in this context, including

We are pleased to announce the publication of a report titled “Data Law Trends & Developments: E-Discovery, Privacy, Cyber-Security & Information Governance.” The report explores recent trends and anticipated future developments on critical issues related to the intersection of technology and the law, which affect a wide range of companies and industries. In addition, the report highlights key cases and issues to watch in 11 areas of data law, including: information governance, cybersecurity, social media, technology-assisted review, criminal law, regulatory, cooperation, privacy, cross border transfers, bring your own device (BYOD), and privilege.
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The State Bar of California may soon deem an otherwise highly skilled attorney to be “incompetent” in the practice of law if he or she does not know the basic steps to take with respect to electronic discovery and does nothing to fill that gap in knowledge. On February 28, 2014, California’s State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved a Proposed Formal Interim Opinion for a 90-day public comment distribution, which analyzes a hypothetical fact pattern of an attorney who makes egregious mistakes in e-discovery.
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Last week, the Department of Justice announced that Kazuaki Fujitani, a former Denso Corporation executive, agreed to plead guilty to obstruction of justice charges in connection with an Antitrust Division price fixing investigation. Fujitani agreed to serve one year and one day in U.S. prison for destruction and concealment of records and documents under 18

Just last week, I published this article with a colleague in BNA’s Digital Discovery & e-Evidence® regarding the implications of a recent federal court decision for common document retention policies. The article—entitled “Terminating Sanction for Destroying Files to Avoid Suit Raises Concern for Document Retention Practices”—analyzes the court’s decision Slep-Tone Entertainment v. Granito (2014 BL 4257D. Ariz., CV 12-298 TUC DCB, 01/08/14). As we observe in the article, the case exemplifies the adage “bad facts make bad law.” If restricted to its rather unusual facts, the case is of little note. But the court’s reasoning in granting summary judgment as a spoliation sanction against the defendant raises concerns for document retention policies motivated by similar objectives.

We counsel clients to significantly limit the volume of ESI they maintain for a variety of reasons. One compelling reason is to reduce litigation expense and exposure. After all, as we note in the article, the less ESI a company maintains, the less risk it produces some ‘‘smoking gun” document in unanticipated litigation and the less expense it incurs in discovery in any such litigation. Limiting ESI prospectively generally involves imposing limits on what and how much information employees can maintain. Auto-delete policies, for example, can be effective tools. Limiting ESI already on hand, however, generally requires deletion.
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