Last summer, Fabrice Tourre didn’t turn around fast enough to see the bus coming at him. Goldman Sachs had given him a big push and put him in the front and center of their big bet on a crash in the residential mortgage securities market. Tourre ended up as the Fabulous Fab after giving himself [...]
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The Fabulous Fab Rule
Don’t write emails so provocative that they wind up reproduced on the front page of the Wall Street Journal. With many fund managers having to register under the Investment Advisers Act, they will now be subject to more extensive record-keeping requirements. That means more emails will be saved for a longer period of time. Those [...]
Are Facebook and MySpace Messages Subject to Discovery?
In the recent case of Crispin v. Audigier, a California judge ruled that Facebook and MySpace messages that aren’t publicly available are protected information under the Stored Communications Act, and therefore can’t be subpoenaed for use in civil litigation. Buckley Crispin sued clothing maker Christian Audigier for copyright infringement, alleging that Audigier used his artistic [...]
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 [...]
In-House Counsel Sanctioned for Failing to Monitor the Preservation of Electronic Evidence
In the Swofford v. Eslinger case, the court sanctioned in-house counsel (but not outside counsel) for failure to preserve evidence. The attorney sanctioned was general counsel for a government entity, the Seminal County Sheriff’s Department. What was unique about this case was that the sanctions were brought against in-house counsel for spoliation of evidence even [...]
The Four Areas of Risk and Knowledge
When thinking about risk, I break things into four quadrants. There are things we know and there are things we don’t know as individuals. I then slice slice that further again with the things we know and the things we don’t know as part of the larger organization or conscious state. Our sweet spot is [...]
California Adopts e-Discovery Rules
Never mind the budget crisis or handing out IOUs, California has passed its own Electronic Discovery Act. California joins the 30 other states that have decided to include provisions in their rules aimed directly at the discovery of Electronically Stored Information. The Act amends the California Code of Civil Procedure by expressly permitting discovery of [...]
Discretion and Compliance
Martin Lomasney created a famous saying on the importance of discretion: “Never write if you can speak; never speak if you can nod; never nod if you can wink.” At the time of Lomasney, it was not email but telegrams that were the principal method of electronic communication. But those telegrams just ended up on [...]
Email Compliance 201
LiveOffice presented a webinar on records management issues related to electronic correspondence and archiving. (I missed the Email Compliance 101 session.) First up was Christina Rovira, Legal Compliance Advisor at CoreCompliance & Legal Services, Inc. She pointed out that SEC and FINRA require investment advisers and broker-dealers to supervise the business activities of their representatives. [...]
Document Retention Policies and Spoliation of Evidence
In a recent case, a court found the implementation of a document retention policy to amount to the spoliation of evidence and imposed the “nuclear” sanction of declaring the suit unenforceable. In the case of Micron Tech. v. Rambus in the U.S. District Court for Delware, Judge Sue Robinson was addressing the effect of Rambus’ [...]
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