The Advanced E-Discovery InstituteNovember 12-13, 2009

Government Investigations

Panel Questions

1. From the government’s perspective, how do you “keep them honest” and ensure that relevant electronic information is not being improperly withheld? From the complying party’s perspective, what can you do to assure the government that you are doing all that is reasonably required?

2. Assuming an investigative target wants to cooperate – or at least not play hardball – with an investigation, given the realities of electronic discovery and review, how can it comply, or comply adequately, without breaking the bank?

3. Spoliation may be a potential crime in and of itself and be used to prove consciousness of guilt for various underlying crimes. Under Sarbanes-Oxley, destroying or altering documents, emails, or other ESI may be a crime, even if no official “investigation” is pending or imminent. And, where documents – or ESI -- sought during discovery in a civil case have been withheld or destroyed, that may be a crime as well. Under these circumstances, what steps should be taken to avoid criminal prosecution in this area?

4. Commentators and practitioners have indicated that the 9th Circuit’s en banc decision in U.S. v. Comprehensive Drug Testing, Inc., on Aug. 26, 2009 may dramatically change the way computer search warrants occur in the future, at least in the 9th Circuit. What is the practical impact of the CDT decision around the country?

5. Addressing form or forms of production in law enforcement investigations, is there is preferred method or methods of delivering information to investigative agencies. What are the available options? What if the agency fails to specify a form, or demands a form that the target cannot provide?

6. In today’s global economy, when there are multi-jurisdiction investigations, are there any means by which the targets, or the interested governments, can co-ordinate the investigations to ensure that they are completed efficiently and that they do not end with inconsistent results?

7. In a related vein, when investigations extend beyond national boundaries they sometimes raise questions about foreign privacy laws and other laws or policies that hinder, impede, or outright block the transfer of data or information across borders. How can parties deal with such limitations on the transfer of data that the government seeks?

8. The government’s propensity for making sweeping demands in its investigative requests is well-known and the government has often said it will rein in such requests. Yet they continue. Why do the agencies persist in making broad requests for information? Also, when agencies negotiate to narrow or limit investigative demands, the government is often reluctant to engage in serious discussions about key words, or other searches methods. What is the government looking for? And what do you think is the best way to deal with scope of search issues?

9. Federal Evidence Rule 502, which deals with both the intentional and the inadvertent production of privileged information, appears to cover the production of information to federal agencies and offices and is not limited solely to court proceedings. What role, if any, do you think the Rule has in reducing the costs of privilege review or in expediting compliance with investigative demands?