Zubulake Revisited: Six years Later

A new treatise has been written on field of electronic stored information and sanctions for spoliation. In the Amended Opinion and Order for The Pension Committee of the University of Montreal Pension Plan et al., v. Banc of America Securities, LLC, et al. Judge Shira A. Scheindlin of the Southern District of New York, addressed the issues of parties’ preservation obligations and spoliation in great detail.

The order identified several actions (or failures to act) which would result in a finding of gross negligence in upholding discovery obligations:

“After a discovery duty is well established, the failure to adhere to contemporary standards can be consi-dered gross negligence. Thus, after the final relevant Zubulake opinion in July, 2004, the following failures support a finding of gross negligence, when the duty to preserve has attached:

  • to issue a written litigation hold;
  • to identify all of the key players and to ensure that their electronic and paper records are preserved;
  • to cease the deletion of email or to preserve the records of former employees that are in a party’s possession, custody, or control; and
  • to preserve backup tapes when they are the sole source of relevant information or when they relate to key players, if the relevant information maintained by those players is not obtainable from readily accessible sources.”

The order establishes that sanctions for evidence spoliation require proof that: (i) the party had control over the evidence and an obligation to preserve it at the time it was lost or destroyed; (ii) acted with a culpable state of mind; and (iii) the lost or destroyed evidence was not only relevant to the innocent party’s claims or defenses, but also that party suffered real prejudice as a result.

Sources:

Adriana Linares of LawTech Partners supplied the image: http://www.flickr.com/photos/lawtechpartners/438634521/. Used with permission.

SEC Guidance Regarding Disclosure Related to Climate Change

Last week, the Securities and Exchange Commission voted to provide public companies with interpretive guidance on existing disclosure requirements as they apply to business or legal developments relating to the issue of climate change. The SEC has now released the text of the guidance:
Guidance Regarding Disclosure Related to Climate Change

Those who are fired up about global warming will be quickly underwhelmed by the guidance. At its most basic it merely reminds public companies that they need “to consider climate change and its consequences as they prepare disclosure documents to be filed with us and provided to investors.”

The guidance claims that it will does not create any new disclosure requirements. Given the increased regulation of emissions, cap and trade, and insurance company adjustments, companies need to disclose the potential impact of these changes on the future prospects of the company.

I expect we will see a new section in the annual filings this spring, some interesting reading and some inflammatory news reports.

The globe image is by Jackl under the Creative Commons Attribution ShareAlike 3.0 in Wikimedia: http://commons.wikimedia.org/wiki/File:Global_warming_ubx.svg.png

Paying a Bribe with Zero

In India, petty corruption is pervasive. Its citizens often face situations where they are asked to pay bribes for public services that should be provided free. The 5th Pillar is advocating for paying the bribe with a zero-rupee note.

According Vijay Anand, president of the 5th Pillar, the idea is credited to an expatriate Indian physics professor from the University of Maryland who was traveling back home. He found himself harassed by endless extortion demands and thought of the notes as a polite way of saying “no.” The 5th Pillar took the idea to the next level and has distributed one million of the zero-rupee notes since 2007.

They have been collecting success stories of how the notes have battled bribery: 5th Pillar Success Stories.

5th Pillar is a non profit, non governmental organization aimed at fighting corruption. The name of the group is based on the premise that India already has four pillars of democracy – the legislature, executive, judiciary and the media. “So, any socially conscious, patriotic and well-meaning citizen who abides by laws and puts the nation in front of his personal gains, is a 5th Pillar.”

Sources:

Boston Bar Association Presentation on Web 2.0

Martha Sperry of Advocate’s Studio asked me to join her in a presentation to the Boston Bar Association’s Computer & Internet Law Committee titled: Beyond LinkedIn: Advanced Social Media for Lawyers.

Martha Sperry, OneBeacon Insurance Group Ltd., and Doug Cornelius will lead a brown-bag lunch discussion for lawyers who are familiar with the various forms of social media but want to take their use to the next level. Would you like to make better use of social media in your practice? Are you interested in starting a blog or Twittering about legal issues but concerned about ethical restrictions or other pitfalls? Martha will discuss the latest technologies and how to use them most effectively and efficiently in marketing and online brand development. Doug will discuss security and ethical issues and online best practices.

Presentation Slides:

You can also find the slides on Slideshare: Beyond Linked In Advanced Social Media For Lawyers.

We also provided a handout full of information on useful sites and tools:
http://docs.google.com/View?id=dcnnt5b4_28jhgwr9gk

The SEC and Climate Change

Last week, the Securities and Exchange Commission voted to provide public companies with interpretive guidance on existing disclosure requirements as they apply to business or legal developments relating to the issue of climate change.

Chairman Mary Schapiro pointed out in her speech that the SEC is not commenting or opining on the issue of climate change; rather the guidance is intend to “provide clarity and enhance consistency” to help companies decide what does and does not need to be disclosed.

There has been a fair amount of discussion, mostly because climate change is such a lightning rod issue. I think most people, even Republicans, have agreed that the planet is going through some fairly rapid climate change. The debate has shifted to how much of it is caused by man and what we can do to slow climate change. But not the SEC: “We are not opining on whether the world’s climate is changing, at what pace it might be changing, or due to what causes.” If they are going to regulate, they should at least admit that there is climate change.

Maybe they should take a trip to McCarty Glacier in Alaska.

Image from Global Warming Art under CC-BY-SA

As with most SEC rules, the press release was short on details and we are still waiting for the actual interpretive notice to see what will be required.

Sources:

The globe image is by Jackl under the Creative Commons Attribution ShareAlike 3.0 in Wikimedia: http://commons.wikimedia.org/wiki/File:Global_warming_ubx.svg.png

Futures Trading and Social Networking

With this week’s release of FINRA’s guidance on social media sites for securities traders, I thought it would be interesting to look at how the futures trading regulatory body is dealing with the issues. It turns out that the National Futures Association recently amended its rules to address social media and released new interpretive notices (.pdf).

As with FINRA, the NFA took a platform neutral position. On-line communications are subject to the same standards as other types of communications.

All audio or video advertisement, regardless of whether its on the radio, television, the internet or any media accessible by the public is subject to the rule. That means it must be reviewed by the NFA before it is published if it contains a specific trading recommendation or claims of past profits.

Any electronic content that can be viewed by the general public, or even by a more closed community that includes current and potential customers, can be promotional material. That makes it subject to the requirements of NFA Compliance Rules 2-29, 2-36, or 2-39.

Members should have policies regarding employee conduct. These policies could require employees to notify the employer if they participate in any on-line trading or financial communities and provide screen names so that the employer can monitor employees’ posts periodically. Alternatively, the policy could simply prohibit participation in such communities. The Member must, of course, take reasonable steps to enforce whatever policies it adopts.

The notice also points out that you need to be careful about your hyperlinks. You could be held accountable for linking to third party content that is misleading.

Sources:

Weekend Book Review: Sonic Boom by Gregg Easterbrook

You may know Gregg Easterbrook from his previous book The Progress Paradox (one of his six books) or his articles in The Atlantic. I know him mostly from his hobby: writing the Tuesday Morning Quarterback column on ESPN.com.

Sonic Boom tries to look beyond the current recession. Easterbrook looks ahead to what to expect after we make our way out. He sees the continued growth of globalization, interconnectedness and technology improvements. That should lead to greater prosperity, knowledge growth, instability and financial distress.

Easterbrook starts off Sonic Boom by using the Chinese city of Shenzhen, with its population of 9 million. But thirty years ago, the city did not exist. In 2007, it sent out 21 million containers, making it the fourth largest port in the world.

His next example grabbed me because it revolves around Waltham, Massachusetts, which is just down the street from me. He even calls my alma mater, Brandeis University “an outstanding institution”. Waltham is an example because it was the home of the first modern factory in the US. (I wrote about this is an article for Wired: GeekDad Visits the Charles River Museum of Industry & Innovation.) Waltham went through some tough times as it went from being a center of manufacturing to center for high tech and venture capital.

The book continues by focusing on a city and the how globalization has affected each. There is disruption, innovation, loss, growth, distress, and gain. Easterbrook then uses the example to launch into further discussion.

All of the turmoil in the job markets makes employer-sponsored health-care a bad fit. “It’s ridiculous that our cell phones work wherever we go but our health-care coverage does not.”

Yes, globalization is displacing manufacturing jobs from the United States. But you also need to look at the advances in efficiency and technology that reduce manufacturing jobs. The US made 106 million tons of steel in 2007 with 159,000 workers. That is more than the 91 million tons of steel made in 1977 with 531,000 workers.

Globalization is also bringing peace. A few decades ago the world’s two most important countries had horns locked trying to destroy each other. The US and USSR had nuclear missiles aimed and fingers on the button. We would not even send athletes to the other’s hosting of the Olympic Games. Now the two most important countries are the US and China. We are locked “cooperative competition” of trade and finance.

Sure, China has a long way to go towards democracy and human rights. But the country is much better than it was 30 years ago.

If you have read Tuesday Morning Quarterback, you will encounter some familiar stories. You will also find the writing familiar as he has weaved some of these tales of economics into his football column.

Is Easterbrook right? Do I agree with everything he writes? Well, even Kurt Warner throws a few incomplete passes.

If you like football, then you should also read his Tuesday Morning Quaterback column on ESPN.com. I enjoyed reading Sonic Boom and recommend that you read it. With only one meaningful football game left this season, you’ll need something to read in the off-season.

Disclosure: Most of the links above are Amazon affiliate links.

Compliance Bits and Pieces for January 29

Here are some interesting stories from the past week:

French Supreme Court Limits the Scope of the Whistleblowing Process by Cecile Martin in the Privacy law Blog

For the first time the French Supreme Court addressed the issue of the validity of a Code of conducts that had been implemented by a listed company (Dassault Systèmes, a French Software company) in order to comply with the Sarbanes Oxley act. By its decision, The French Supreme Court, overruled the decision of the Court of Appeal, which had declared the whistleblowing system implemented by the Code of Conduct of Dassault Systèmes compliant with the French data protection authority (CNIL) and therefore legal.

America Bowl

There is only one football game left: Super Bowl XLIV. Coincidentally, our 44th president is also in office. This will never happen again. In celebration of this coincidence, Don Steinberg is matching the president to the corresponding Super Bowl to decide which is better.

Questions Arise on Timely Ethics Disclosures by Melissa Klein Aguilar in Compliance Week (sub required.)

Almost a decade after Enron’s implosion, some public companies appear to be dodging required ethics disclosures intended to prevent the sort of insider dealings that helped bring down the legendary energy company, according to a new academic analysis.

Three Little Words by Andrea Howe in Trust Matters

Here are three phrases, each three words long, that are an essential part of any Trusted Advisor toolkit:

  • “That makes sense.”
  • “Tell me more.”
  • “I don’t know.”

NERA Releases Annual Canadian Securities Class Action Study by Kevin LaCroix in The D&O Diary

On January 27, 2010, NERA Economic Consulting released its updated annual review of Canadian securities class litigation entitled “Trends in Canadian Securities Class Actions: 2009 Update” (here). The report presents an interesting study of the evolution of class action litigation in a jurisdiction outside the U.S.

Greek Minister of Defense Regulates Contacts with Defense Companies – The Wrage Blog

The Greek Minister of Defense has taken steps to increase transparency in its dealings with defense contractors. This summary is provided by Takis Kakouris of TRACE partner firm Zepos & Yannopoulos.

Governing Social Media: How to Monitor, Manage and Make the Most of Employee Use of Social Media

Join me, Kathleen Edmond, Chief Ethics Officer, Best Buy, and Janice Innis-Thompson, SVP & Chief Compliance Officer, TIAA-CREF, as we discuss compliance and governance issues of web 2.0 and social networking.

“Corporate Communication takes on a whole new meaning in a world of social media, where employees can freely post their views and spread documents, photographs and even videos across the globe with a click of a mouse. Companies that are ahead of the curve not only have established policies regarding use of social media sites by their executives and employees, but also are finding ways to use social media to their competitive advantage. Join our panel to hear about the risks and rewards that a well managed approach to social media can bring.”

Our Session: Governing Social Media: How to Monitor, Manage and Make the Most of Employee Use of Social Media