Articles

According to government data, the number of wiretaps authorized by courts has more than doubled in the past decade.  The number of individuals interecepted by wiretaps also has increased significantly.  Yet, the percentage of authorizations resulting in incriminating evidence and convictions has steadily declined.  The inevitable conclusion is that the number of innocent people being wiretapped over the past decade has increased.  Despite this trend, federal courts have been inconsistent in their application of federal wiretap law intended to protect the crucial interests at stake.

The opportunity to meet with a non-party witness before that witness is deposed can be extremely valuable to a litigant.  This article discusses recent cases warning that the substance of such meetings often will be fair game for opposing counsel.

With the ever-expanding use of e-mail, cloud computing, and social networks, vast amounts of private data are increasingly stored online, and thereby entrusted to the custody of third parties.  Unfortunately, although our digital footprint has never been more expansive, the legal framework governing the privacy of that information remains sorely outdated, incomplete, and poorly understood.  This article provides an overview of the regulatory scheme and reviews recent case law affecting the ability of government and private actors to compel disclosure of e-mail or other electronic user data stored online by entities like Google, Hotmail, Yahoo!, Twitter, Facebook, LinkedIn, or their equivalents.

Courts apply the personal benefit test in tipping cases brought under the "classical" theory of insider trading. Prosecutors and regulators argue that the test does not apply in misappropriation cases and some courts have agreed. But careful examination of the purpose for the test and the requirements of misappropriation liability suggests that the government's opposition is misguided.

A recent case from the Eleventh Circuit addresses the intersection of the Fifth Amendment's privilege against self-incrimination and digital evidence.  While courts may seek to insure that criminals cannot use encryption techniques to hide digital evidence and defeat otherwise valid subpoenas and warrants, the case examines to what extent a citizen can be expected to cooperate in these efforts through the provision of passwords or decrypted hard drives without waiving his own constitutional protections.

Criminal investigations of companies are commonly resolved through deferred prosecution or non-prosecution agreements which allow companies to avoid indictment and trial but impose a number of burdens, including a binding admission of wrongdoing.  This article reviews the current use and impact of these agreements in parallel civil litigation.

On July 29, 2011, a federal district court judge ruled that transcripts of Richard M. Nixon's grand jury testimony related to the Watergate scandal - given with the expectation that it would remain secret - should be released to the public. Since the decision the Justice Department has proposed an amendment to Rule 6(e) of the Federal Rules of Criminal Procedure in an attempt to confine a court's discretion to release secret grand jury materials. This article reviews the law of grand jury secrecy and instances in which a federal court may order the release of grand jury records.

The U.S. District Court for the Southern District of New York launched a pilot project aimed at improving pretrial case management of complex civil cases. This article highlights some of the key aspects of the project, which was designed to address concerns pertaining to costs and delays voiced by clients and members of the bar, and impose some proportionality on the time and resources spent by the courts and parties alike.

Although the presumption of innocence is one of the bedrocks of our criminal justice system, quite often suspects are tried and condemned in the court of public opinion before even being charged in a court of law. This article discusses how to deal with the media, both tactically and ethically when a client is in the public eye, in order to rebalance a sometimes tilted playing field.

Under Treasury Department regulations, taxpayers are required to keep records relating to accounts they maintained at foreign financial institutions. Faced with a subpoena for such records, a taxpayer who did not disclose a foreign account on his income tax returns and on FBARs faces a difficult dilemma: producing the records will demonstrate that his previously filed returns were false, while denying that he has the records could subject him to prosecution for failure to keep required records. This article discusses two recent decisions -- one out of the Ninth Circuit and one from the United States District Court for the Southern District of Texas -- addressing taxpayers' assertion of their rights under the Fifth Amendment in response to such subpoenas.

Managing internal investigations is one of the most important responsibilities of in-house counsel. This article offers suggestions for conducting thorough, and cost-effective, investigations.

This article concerns the increased focus by federal and state regulators on the energy markets, as well as potential competition among regulators in this area.