Edward J. Jacobs

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SEC and CFTC Continue Crackdown on Financial Firms Over Off-Channel Communications

Key Takeaways Background The SEC and CFTC settlements with HSBC and Scotia Capital come after years of federal regulators’ and prosecutors’ steadily increasing scrutiny of off-channel communications. Anchoring these settlements are long-standing books and records requirements of the SEC and the CFTC regulating the maintenance and preservation of documents. Specifically, Section 17(a)(1) of the Securities … Continue Reading

Google Sanctioned for Failure to Preserve Internal Chat Messages

In re Google Play Store Antitrust Litig., — F. Supp. 3d —-, 2023 WL 2673109, No. 21-MD-02981 (JD) (N.D. Cal. Mar. 28, 2023) Practical Insight This decision illustrates three trends in e-discovery: (1) employees are increasingly using chat platforms and other means of instant messaging to engage in substantive conversations about work; (2) courts are … Continue Reading

Client and Counsel Sanctioned More Than $2.5 million for ‘Amateur Hour’ Discovery Ineptitude

Practical Insight This case is a cautionary tale for the attorney who may know to say all of the right things when it comes to modern discovery practice but, in fact, lacks the expertise and competence to oversee a defensible discovery effort. This counsel instead subjected the court to a self-described “inner circle of judicial … Continue Reading

DOJ Corporate Criminal Enforcement Updates Shine a Spotlight on Texts and Instant Messaging Applications as Potential Evidence

In September 2022, the U.S. Department of Justice (DOJ) issued a memo announcing revisions to the DOJ’s corporate criminal enforcement policies and practices. The memo made clear that the DOJ expects “all corporations with robust compliance programs [to] have effective policies governing the use of personal devices and third-party messaging platforms for corporate communications . … Continue Reading

The Supreme Court Dodges—for Now—the Circuit Split on the ‘Dual Purpose’ Test for Privilege

In re Grand Jury, 23 F.4th 1088 (9th Cir. 2022), appeal dismissed as improvidently granted, In re Grand Jury, 598 U.S. ____ (2023) (No. 21-1397). Summary of the Case: The Supreme Court, which had initially agreed to consider a circuit split on a privilege issue that commonly arises in discovery, reversed course and dismissed the … Continue Reading

Adapting E-Discovery Workflows to a Remote Work Environment

As courts and litigants adapt to the new normal by instituting social distancing measures through remote hearings and depositions, how we preserve, collect and produce documents should not be an afterthought. While the practice of e-discovery may already be well suited to remote work given the advanced evolution of technologies available to address challenges, below … Continue Reading

Advocacy in E-Discovery More Important Than Ever

In this day and age, advocacy starts with competence in ESI issues. An effective advocate must be able to assess e-discovery needs and issues, implement appropriate preservation procedures, advise clients on options for storage and preservation, understand the client’s ESI systems and storage, and handle the management, review and production of ESI in litigation. But … Continue Reading