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Episode 11: Better Know a Judge: Vice Chancellor Joseph R. Slights, III of the Delaware Court of Chancery

On this episode of CorpCast, we continue our “Better Know a Judge” series with an interview of the newest member of the Delaware Court of Chancery, Joseph R. Slights, III. Joe discusses why he took a pay cut while his...more

CorpCast Episode 10: eDiscovery Review

On today’s episode of CorpCast, we are joined by our colleagues Ian McCauley and Laura Readinger. Ian and Laura’s practice focuses on eDiscovery, and this episode covers Delaware developments on the subject over the past 16 months. We cover global issues such as the role of Delaware counsel in discovery, and the Court of Chancery’s growing concern regarding the conduct of counsel throughout discovery. We also take a look at defensible document collection, preservation of text messages, and production of personal email. Finally, we discuss very narrow topics that the Court has tackled, including production of metadata and document review. Love what you hear? Go to our podcast tab for archived episodes and be sure to follow @DECorpCast for the latest updates. If you have questions or comments, you can reach us at Thank you for listening!more

CorpCast Episode 9: 2015 Year in Review

Welcome back to CorpCast! In this 2015 Year in Review, we discuss several important cases from the past year, starting with the tidal wave of antagonism in the Court of Chancery towards disclosure-only settlements ending with In re Trulia, Inc. Stockholder Litigation. We then move to discuss several instances of “financial advisors behaving badly,” with a look at In re TIBCO Software Inc. Stockholders Litigation and RBC Capital Markets, LLC v. Jervis. We’ll also take a look at opinions dealing with conflicted transactions, revisiting Corwin v. KKR Financial Holdings LLC and Delaware County Employees Retirement Fund v. Sanchez, as well as discussing In re Cornerstone Therapeutics Inc., Shareholder Litigation and In re Dole Food Co., Inc. Stockholder Litigation. Finally, we’ll look to some contract actions, including 1 Oak Private Equity Venture Capital Limited v. Twitter, Inc. and SIGA Technologies, Inc. v. PharmAthene, Inc., and touch on the invalidation of company bylaws in In re Vaalco Energy Inc. Consolidated Stockholder Litigation. Of note, our own stat guy tells us we (Pete) misstated the liability in RBC Capital Markets. It was $75 million, not $83 million. Love what you hear? Go to our podcast tab for archived episodes and be sure to follow @DECorpCast for the latest updates. If you have questions or comments, you can reach us at Thank you for listening!more

Benchmark surveys: GCs, Executives Not Prepared to Defend Against Cyberbreaches - Key Protective Steps

Although cybersecurity has become a more prominent issue for executives and boards of directors, three recent benchmark surveys - the BDO Board Survey, the 2015 Consero Group’s General Counsel Data Survey, and the 2015 US State of Cybercrime Survey - indicate that a number of cyber-preparedness gaps remain. more

Looking Back on 2014: The 7 Most Important eDiscovery Cases in Delaware - Part 3

Herbert Chen and Derek Sheeler v. Robert Howard-Anderson, Steven Krausz, Robert Abbott, Robert Bylin, Thomas Pardun, Brian Strom, Albert Moyer, Jeanne Seeley, and Occam Networks, Inc., C.A. No. 5878–VCL, Oral Argument on Plaintiffs' Motion to Compel Production of Documents by Defendants and Jefferies and for Sanctions Against Defendants and the Court's Rulings, September 4, 2014.more

Cybersecurity Breach: Are Board Members at Risk?

It seems a month does not pass in which some sort of breach of confidential data of a business is not announced to the public. With the increase in cybersecurity breaches, so increases board members’ exposure to litigation regarding such occurrences.more

E-Discovery Litigation Holds

Preserving company E-mail that may be relevant in litigation is important for every business. Failure to do so can open a company to liability for breaching the duty to preserve evidence. Sending a notice to employees who may have relevant E-mail is an important step in preserving such evidence. The notice, commonly referred to as a litigation hold, should instruct employees not to discard or erase such E-mails. A recent decision by the 2nd Circuit Court of Appeals held that failure to send a litigation hold doesn’t constitute gross negligence per se, resulting in grounds for judicial sanctions, but it is an important factor to consider in determining if sanctions are warranted. [Chin v. Port Authority, 7/10/12] more

California Electronic Discovery Act: Part Four

Part Four in a multi-part series on the topic. Searching for evidence in the form of email, text messages and instant messaging is increasingly important in lawsuits. However, requests for this type of evidence during the discovery phase can be seen as a fishing exercise and place undue burdens on the company who has to produce such, especially if the requests are not tailored to specific categories of information and limited. As a result, judges, applying rules of evidence, may be inclined to limit such discovery. For example, see the Model Order Regarding E-Discovery in Patent Cases, issued by an Advisory Council on the Federal Circuit. In states such as California, courts often balance the requesting party’s right to obtain broad discovery with the privacy rights guaranteed by the state constitution, especially when email is used for personal as well as business purposes. more

Preparing for Data Collection in Internal Investigations

Patrick Kellermann from LeClairRyan, an expert in e-discovery and data compliance issues, joins us again as a contributor. His profile can be viewed here {see alert for link}. In all honesty, document collection and review during an internal investigation is not a very sexy issue. It is not like interviewing techniques, strategy calls on how to conduct the investigation, or even like reporting to the Board on an investigation.more

Revised Cyber Security Act 2012

Congress has been struggling with cyber security issues for several years, most recently in connection with the Cybersecurity Act of 2012 (CSA2012). CSA2012 is an attempt to protect the nation’s critical infrastructure from cybersecurity risks. The initial version of the bill attempted to do so by first identifying critical infrastructure, then requiring owners and operators of such assets to meet cybersecurity performance requirements. But objections raised by privacy advocates led to a revised bill (S. 3414), which relies on voluntary private sector compliance with cybersecurity standards. [InsidePrivacy] more

California Electronic Discovery Act: Part Three

Part Three in a multi-part series on the topic. In Part One of this series, we discussed California’s Electronic Discovery Act. Part Two discussed the importance in legal proceedings of electronic information from social media sites like Twitter and Facebook. LinkedIn is another online social media site which has electronic information that you or your company may need to subpoena as evidence in a lawsuit. LinkedIn bills itself as the “World’s Largest Professional Network” and is geared to professionals and job seekers. This professional focus distinguishes it in terms of substance and content from much of the electronic information published on Facebook and Twitter. Of course, businesses do make use of Facebook and Twitter, which can be important pieces of their overall marketing and communication strategy. But the social interaction that predominates on those sites is of a non-professional nature. more

California Electronic Discovery Act: Part Two

Part Two in a multi-part series on the topic. In Part One of this series, we discussed California’s Electronic Discovery Act, which established procedures for parties to discover electronically stored information (“ESI”) from opposing parties for use as evidence in state court actions. ESI that may be subpoenaed as evidence in a lawsuit includes information from social media sites, like Twitter and Facebook. In a recent criminal case in New York, the defendant, Harris, was charged with disorderly conduct for marching onto the Brooklyn Bridge during an Occupy Wall Street protest. Harris moved to quash a subpoena served on Twitter seeking his “subscriber information, e-mail addresses, etc. and content information such as tweets.” more

California Electronic Discovery Act

California’s Electronic Discovery Act was signed into law on June 29, 2009, establishing procedures for parties to discover electronically stored information (“ESI”) from opposing parties for use as evidence in state court actions. “Electronically stored information” means information that is stored in any electronic medium. [California Code of Civil Procedure (“Cal CCP”), Section 2016.020(e)] As such, ESI may include, among other things, social media, blogs, text messages, emails and other electronic files that exist on computers, cell phones, and/or other electronic devices. more

Getting the Deal Through – e-Commerce 2013

"Reproduced with permission from Law Business Research. This article was first published in Getting the Deal Through - e-Commerce 2013 (published in July 2012; contributing editor: Robert Bond of Speechly Bircham LLP). For further information please visit"more

Cybersecurity and Data Privacy: Big Data and the Law

As the use of the internet and social media continues to increase rapidly, companies are being challenged to keep up with changing laws and the many ways in which customer and employee data flow in and out of their hands. In this exclusive video briefing, Dechert's Ben Barnett, Timothy Blank, Vernon Francis, Vivian Maese, Renzo Marchini and Joshua Rawson examine the latest issues affecting "big data" and the law, including trends in eDiscovery in litigation, privacy in the workplace and strategies for companies to mitigate the risk of cyber attacks.more

Digital Risk Management Strategies For Business

Ensuring that key business data survives unexpected events is vital for businesses large and small. That’s why every business should have a plan in place to ensure the availability of its data when manmade or natural catastrophes occur. more

The Legal Four Corners Of Social Media And E-Discovery For Businesess

Companies are on social media. They are interacting and connecting with customers through Facebook, Twitter and blogs. In a 2010 study, numbers on the conservative side show that 65% of Fortune Global 100 companies have active Twitter accounts, and 54% have Facebook fan pages. One third of these companies have a blog. This is how companies are doing business today. And, with this presence online comes legal obligations to capture and save these communications. These obligations can seem daunting, but when broken into four areas of action, or the four pillars of social media and eDiscovery, any organization should be able to meet this new challenge.more

Legal Alert – May 2012 – Admissibility of Electronic Evidence

In this Issue 1. May 2012 – Admissibility of Electronic Evidence 2. Copyright and Disclaimer Notices 3. Subscribe and Unsubscribe Introduction The inestimable benefits of the various advancements in information and communication technologies have until the enactment of the new Evidence Act in 2011 remained a matter of much debate and judicial uncertainty. Tendering of electronic mails (“emails”) for example are usually as contentious and acrimonious as the litigation itself, with the opposite party usually relying on the hearsay rule, among other forms of objections under the old Evidence Act 1945, to prevent the admission of such electronically generated evidence. The enactment of the Evidence Act, 2011 has attempted to correct some of the difficulties that the admissibility of electronically generated evidence do encounter in Nigerian Courts. However, is the general perception that all electronic communication and mails are now admissible in Nigeria, correct? This Legal Alert is our contribution to the enlightenment process on the provisions of the 2011 Evidence Act regarding the admissibility or otherwise of electronically generated evidence. Admissibility of Evidence Generally Relevant to the admissibility of electronic evidence are the common rules governing the admissibility of evidence generally. Some of these common rules need mention in this Alert. Under Nigerian Law, facts which are in issue, with the facts which are relevant to the facts in issue, are generally admissible in evidence. In the 1945 Evidence Act which is now repealed, technologically generated evidence was argued to offend some of the following general rules of evidence: (i) The issue of the custody and the reliability of the evidence tendered if it is not the original document. (ii) The best evidence rule which requires that a party must produce the original document during a trial or where the original document is not available, secondary evidence of it in the form of a copy, with other corroborating notes, etc, must be produced. (iii) The rule against the admission of hear-say evidence which forbids witnesses giving evidence on facts that they do not directly or personally witness or know about. The underlined words above are for emphasis only. The general basis for the admissibility of documentary evidence has not radically changed under the Evidence Act 2011 as documentary evidence is still mostly admissible where the original hard copy of such a document is produced in a Court of Law. See Section 83(1) of the Evidence Act 2011. The Evidence Act 2011 has however expanded this basis general rule to enable the admission of electronically generated documents under certain conditions which are enumerated hereunder. Explanatory Memorandum – Evidence Act, 2011 In its explanatory Memorandum, the Evidence Act, 2011 repealed the 1945 Evidence Act, Cap. E14, Laws of Federation of Nigeria, and enacted a new Evidence Act, 2011 which latter Act applies to all judicial proceedings in or before any Court of Law in Nigeria. Starting with some definitions, this Alert will follow with some succinct highlights of the provisions of the Evidence Act, 2011 as they relate to electronic communication, electronic information, court processes, decided cases, etc, in Nigeria. Definitions of “Document, “Computer”, Evidence Section 258 (1)(d) of the Evidence Act, 2011 describes a document, for the purpose of this Legal Alert, to include “any device by means of which information is recorded, stored or retrievable including computer output’’. A Computer is in turn described to be “any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process.’’ Evidence itself has generally been described by authors to be “the means by which facts are proved, excluding inferences and arguments’. 2011 Evidence Act, Hearsay and Electronic Evidence Under the new Evidence Act 2011, one of the exceptions to the hearsay rule of evidence, which hearsay evidence will otherwise be inadmissible under the old repealed 1945 Evidence Act, is the provision that where even though the maker of the evidence cannot be called to give primary evidence on the “hearsay evidence”, such evidence is established to have been made and kept contemporaneously in an electronic device, in the ordinary cause of business or in the discharge of a professional duty or in acknowledgement, written or signed, of the receipt of money, goods, securities or of property of any kind. See Section 41 Evidence Act, 2011. Where the statement and the recording of the transaction are not instantly contemporaneous, they must occur such that a Court of Law will consider it most likely that the transaction was at the time of the record,more

We've been sued! Now what? A guide to handling business litigation

By William S. Cherry, III A 2010 litigation trends survey warns, “Companies Expect More Litigation.” Federal statistics indicate that the number of employees suing employers rose 35% from 2007 to 2011. A study conducted for the U.S. Small Business Administration in 2005 found that on average 45,000 civil cases are filed nationwide against businesses each year involving 65,000 companies. It is generally assumed that if you own a business long enough you will be sued. The more successful your business, the more likely your business will be sued. If your business has never been sued, what are you going to do when the first lawsuit arrives? If you are one of the many businesses that have previously been sued, what can you do next time to make the litigation process smoother? HANDLE A LAWSUIT PROACTIVELY Whatever you do, don’t ignore the lawsuit. It’s not simply going to go away. A business that is sued and fails to respond to the lawsuit within 30 days can have a default judgment entered against it. The judgment might stay with the business for 20 years or more. It is the rare occasion in which failing to respond is the appropriate action. Like any other roadblock faced in business, a lawsuit should be attacked head-on in an organized way that makes the most strategic sense for the business. Yes, litigation is unfortunately a part of business and should be approached and handled like all other business decisions. The first step to take if your business is sued is to contact your attorney and insurance company. In North Carolina, a business entity such as a corporation or a limited-liability company cannot represent itself in state district court, state superior court or in federal court. A company can represent itself in small-claims court, where the jurisdictional limit of recovery for the plaintiff is $5,000. Since a business served with a lawsuit has only 30 days to respond to the allegations, it is important to retain an attorney as soon as possible after receiving the complaint so there is sufficient time to begin developing a litigation strategy. If you do not have an attorney you should begin searching for one as soon as possible. If your claim is covered by insurance, your insurance company will likely retain an attorney for you. DEVELOP A STRATEGIC PLAN A business and its attorney should promptly identify the key factual issues and applicable legal defenses that can be critical to the success of a defense. Similarly, business litigation is often complex and may involve multiple parties, some of which were not named in the original lawsuit. Identifying those additional parties and adding them to the lawsuit is easier to accomplish procedurally, and is more cost-effective, early in the litigation process. A business must quickly identify key witnesses and all documents relevant to the matters at issue in the lawsuit. This includes identifying witnesses and documents that might be unfavorable to the business’s position. It is impossible for a business or its attorney to properly assess the risks of litigation and the potential for an adverse judgment if all facts, good and bad, are not on the table. All too often after months of litigation and even during the last bit of preparation for key depositions or trial, an attorney will happen upon a key document for the first time and the business owner will say, “Oh, I just did not think that document was important, so I did not think I needed to give it to you.” In a surprising number of instances, the documents actually help the business’s defense. Even if documents are unfavorable to the business, the earlier those unfavorable documents are provided to the attorney, the better the chance that the attorney and the business will be able to work together to limit the negative impact in litigation. PRESERVE ALL RELEVANT INFORMATION It has always been important to quickly identify and preserve relevant documents, whether favorable or unfavorable, during the early stages of litigation. Now that burden has become substantially greater. Historically, all relevant documents were maintained in hard copy somewhere in a file cabinet. It was just a matter of identifying the files and providing them to your attorney. Now, relevant documents may be located on different employees’ computers, a company’s main server, in back-up computer storage files, on cellphones, iPads and in voice-mail machines, or maybe in tweets, blogs, SMS texts or employee Facebook pages, or in the “cloud.” The list goes on and on, but the point is that relevant documents are now stored electronically in many places and are less commonly stored in hard-copy format. The federal courts have recognized the changed landscape of document storage for a number of years and have had electronic discovery rules, commonly referred to as e-discovery rules, in place since 2006 to govern the identification and preservation of electronically stored documents. North Carolinamore

Advocate's Edge

Our bi-monthly newsletter for attorneys featuring articles re: ACFE report highlighting the importance of antifraud controls; Authentication issues: Who creates ESI; Rule 26 Amendments extending greater work product protections; and putting a value on human capital.more

eDiscovery: The Light at the End of the Tunnel - And It's Not a Train

eDiscovery firms are now sought by IT for cloud storage, management, and preservation capabilities.more

Industry Focus LPOs - International Bar Association Magazine

General Counsel are embracing legal process outsourcing due to slashed 2009 budgets. Law firms are no longer the only source for quality legal services. Instead, firms are only one choice on an ever-larger menu of options for corporate counsel. "Great things have been predicted for legal process outsourcing (LPO) over the years – it was once claimed that 80,000 US legal jobs would move to India by 2015 – but the reality has not matched the hype. With the downturn biting and businesses looking to slash costs, could it be an idea whose time has finally come?"more

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