Commenting on Proposed New Rule 502

In January and February 2007, the Advisory Committee on Evidence Rules will hear public testimony and accept written comments and make recommendations to the Judicial Conference and the Supreme Court on a proposed new Rule 502 of the Federal Rules of Evidence. The changes will require approval from Congress. Proposed Rule 502 has controversal provisions, particularly 502(c), a selective disclosure exception opponents argue would encourage prosecutors to ask for waivers in more criminal investigations. Continue reading


General Counsel on the Hot Seat — At Least There’s Insurance…Right?

Today, a lawyer who serves as general counsel in an organization has great and sometimes conflicting responsibilities. For a case in point, see the settlement between the Department of Justice and Prudential Equity Group. Compliance Week covered this story in November in the column titled “Settlement Puts GC on the Hot Seat.” Continue reading

E-Discovery: A Lifecycle of Its Own

This recent article published for CIO Insight magazine asks these fundamental questions:

  • Do you and outside counsel have a basic understanding of how and where the company’s data is stored?
  • How easily can we find and produce critical business communications and records that have been archived?

The unfortunate answer to these questions for most organizations is: no.   The new Federal Rules of Civil Procedure took effect on December 1, 2006.  This means any case filed in federal court after this date must follow the new procedures.  Initial disclosures about electronically stored information or ESI is not required until after both parties have filed their initial pleadings.  If an answer with defenses or counterclaims is served thirty days after the filing and service of the complaint, we should expect the rubber to hit the road on the Brave New World of E-Discovery some time in early February 2007.,1217,a=196673,00.asp

(Another) Survey says most organizations lack records management processes and systems for e-discovery

Seemingly every survey and study point out the same ongoing deficiencies in corporate records management compliance systems. With the results of a gaps analysis and risk assessment in hand, law departments should examine work flows and reengineer where necessary to improve records management controls. There is also value in having claims and matter management systems that centralize data, streamline communications, and faciliate oversight of professional service providers and general purchasing. In the face of more legal and regulatory demands for unstructured data (e.g. email correspondence, presentations, spreadsheets), organizations need effective policies and procedures, and workable action plans to get the job done.

“[L]ess than one-third of law departments rated their early case assessment capabilities as ‘very effective and efficient,’ and only one-third thought their processes for implementing and managing litigation holds were effective. Clearly the GCs understand there is not only room, but need, for improvement, and they are actively seeking help in establishing best practices.”

General Counsel Focused on Improving Business Processes in 2007, Analyst Survey Finds

The Long Awaited McNulty Memo Misses the point…

Yesterday, Deputy U.S. Attorney General McNulty released a long-awaited and much anticipated memorandum to clarify the policy of federal prosecutors and the factors they will consider in making decisions whether to charge organizations with crimes. The memo does little to allay the concerns of the private and corporate bar, who were looking for a firm denouncement stating that the practice of requesting waiver of privilege in a coercive manner is unethical or unlawful. Instead, in sum, the McNulty memo says prosecutors may ask for privilege waiver if they obtain approval from the US Attorney or a Deputy Attorney General. This “clarification” will do nothing more than galvanize the bar, which in this unique circumstance is united on all fronts, and add momentum to the force behind the Specter bill, introduced last week before Congress ended its term. This action should also infuse more passion into the comments on proposed Rule 502 to the Federal Rules of Evidence in 2007. Continue reading

Finding a Safe Harbor: Role of IT Housekeeping in Showing Good Faith

As companies brace for what’s in store under the new Federal Rules of Civil Procedure, which came into effect on December 1, there is much discussion of proposed Rule 37(f), which could bar sanctions against parties unable to produce requested electronically stored information. Rule 37(f) should encourage organizations to bring order to decentralized IT systems and institute effective records management compliance programs. Without standardized policies and procedures, parties will find little protection under this new rule.

This article, “Finding a Safe Harbor,”“> describes a few practical steps organizations might consider.

Plaintiffs are subject to new e-discovery burdens too

The federal district court in Massachusetts imposed sanctions after entering an order of dismissal, based on clear and convincing evidence that plaintiff “destroyed or concealed evidence, engaging in an egregious pattern of misconduct that ha[d] hampered the proceedings.” The relevant information was stored on computer disks. The court did not have the new Federal Rules of Civil Procedure, but invoked its inherent equitable powers to award attorneys fees and impose a monetary sanction on the wrongdoing party. Be careful not to get too greedy, however, as the court reduced by half the attorney fees defense counsel sought in its petition. Plasse v. Tyco Electronics