Forensic Update

Reflections on information management within the legal and regulatory arena

Posts Tagged ‘digital forensics’

Must Transactional Attorneys Preserve Evidence?

Posted by Johnny Lee on June 5, 2012

Shred-DocumentIt is almost axiomatic in American jurisprudence that the duty to preserve arises for a party when that party “knows or reasonably should know” that litigation is foreseeable.  That said, a recent matter out of the federal courts in New York has raised a very interesting question about evidence preservation duties, as well as when and how they extend to certain parties — including their counsel.

Corporate and litigation counsel alike recognize their (somewhat nebulous) triggering event as the “reasonable anticipation” of a dispute arising, and they respond by issuing data preservation instructions to custodians to ensure that all potentially relevant information is retained for possible review and use in such a matter.  However, federal magistrate judge Joan Azrack has indicated that counsel for a party that destroys evidence might be sanctioned for failing to preserve — independent of a litigation hold — certain documents (including emails) that relate to “the lawyer’s negotiation and documentation of a loan agreement.”

What’s novel in this matter is not that this duty arises for counsel, but when and why.  The case (FDIC v. Malik) involves a suit brought by the FDIC, in its role as the receiver for a mortgage company, against the mortgage company’s attorneys (et alia) relating to a series of loan transactions.

It is important to note that this case is still in process, so its implications (both for litigation- and for records-management) will be watched closely.  Of particular note here is the implication that document retention regulations (in this case, arising out of the attorney’s professional responsibility rules) can establish evidence-preservation obligations where the affected party is “a member of the general class of persons that the regulatory agency sought to protect in promulgating the rule.”  If we were to extrapolate this to organizations across the legal spectrum, this could represent a precedent of staggering influence to corporate America and the way it manages information.

 

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Parting is such tweet sorrow…

Posted by Johnny Lee on May 16, 2012

With humble apologies to The Bard for the headline, a recent story picked up by the The Wall Street Journal chronicles the dismissal of a Chief Financial Officer for his candid and extemporaneous disclosures via Twitter and Facebook.  This is yet another in a long series of headline-grabbing stories related to the perils of un-checked social media gaffes.

The tweeter in question is Gene Morphis who, until quite recently, was the CFO of Francesca’s Holdings Corp.  Through its subsidiary, Francesca’s operates a chain of retail boutiques offering apparel, jewelry, accessories, and gifts to female customers.  The company was founded in 1999, is headquartered in Houston, and has a $1 billion market capitalization.

According to the The Wall Street Journal, Mr. Morphis “maintained a publicly viewable profile on Facebook, authored a blog called ‘Morph’s View’ and maintained a Twitter account under the handle ‘theoldcfo.’  Online, he discussed everything from Christmas to college basketball, and occasionally company doings.”  It was the last point in this list that brings him to our attention.

The Journal reports that Morphis posted information related to his dealings with Francesca’s board, an investor road show, earnings calls, and other corporate interactions.  Following an internal investigation led by outside counsel, the company has stated that it terminated Morphis “for cause” and that it is “disappointed by this situation but we expect our executives to comply with all company policies.”

While this specific fact pattern is not familiar to this editor, we can perhaps expect similar examples to come.  According to a recent survey from the Society for Human Resource Management, only two in five employers have formal social-media policies.  Perhaps just as telling, of those organizations with formal policies, one in three have taken “disciplinary action” against an employee in the past year.

The take-away?  Social media technologies represent a significant source of both benefit and risk to organizations today.  Examining these benefits and risks is becoming more and more crucial, and placing these benefits and risks within the context of existing compliance frameworks is becoming the only way to proportionally manage the same.

Posted in Data Governance, Investigations, Privacy, Records Retention | Tagged: , , , , , , , , , , , , , , , | Leave a Comment »

General Counsel Toolworks Forum: Data Governance & eDiscovery

Posted by Johnny Lee on December 1, 2011

Sponsored by Grant Thornton LLP’s Forensic & Litigation professionals, the Forum offers educational events and resources for today’s in-house counsel and corporate senior management. We collaborate with trial and transaction lawyers from some the nation’s leading law firms to bring you periodic complimentary webcasts addressing important financial, operational and legal issues that can impact your organization.

Each event will be supported by a customized Toolbox — documents and other resources offering guidance on the topics covered by the webcast.  The next Toolworks Forum will focus upon the state of the e-discovery marketplace; the importance of intelligent, proactive information and litigation management; and practical steps companies can take to reduce expenses and risks associated with civil litigation and government investigations.

This webinar event will be held on Thursday, January 19, 2012, and it will begin at 1:00pm Eastern time and continue for 90 minutes.  CLE credit has been applied for, and full details can be found here.  Johnny Lee, Director in Grant Thornton’s Forensic & Litigation practice, and Dante Stella, eDiscovery practice leader at Dykema Gossett, will present.

Posted in Computer Forensics, Data Governance, ECM, eDiscovery, Information Security, Investigations, Litigation Hold, Records Retention, Social Networking | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | 1 Comment »

“Controlling your Data Avalanche” Webinar…

Posted by Johnny Lee on October 27, 2011

 

I am pleased to announce that I will join luminaries from Vedder Price, a prominent U.S. law firm, in a discussion on “Managing your Data Avalanche” on November 16, 2011.  This webinar will delve into strategies for satisfying an organization’s legal obligations associated with Records Retention, eDiscovery, Litigation Holds, and Data Privacy.

“All too often, companies approach their data management obligations reactively and in a piecemeal fashion. This need not be the case; in fact, companies can satisfy their legal obligations with greater certainty — and more economically — through comprehensive data management strategies.”

This Webinar will be of interest to General Counsel, Chief Compliance and Information Officers, and those with a key role in managing eDiscovery or litigation within an organization.  This Webinar will provide an overview of legal trends in data management, with a specific focus on social media, cloud computing, eDiscovery, litigation holds, and data breach preparedness and response.  We will discuss ways in which companies can better manage their data through proactive data-management strategies.

To register for this webinar, please click here.  (Login information and presentation materials will be sent to registrants prior to the webinar.)

Click to learn more about Grant Thornton’s Forensics, Investigations and Litigation practice.   Click to learn more about Vedder Price’s Records Management, eDiscovery and Data Privacy practice.

Posted in Announcement, Computer Forensics, Data Governance, ECM, eDiscovery, Forensic Accounting, Information Security, Investigations, Litigation Hold, Privacy, Records Retention, Social Networking | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a Comment »

Excellent Session with the IT GRC experts at annual ISACA Conference…

Posted by Johnny Lee on October 26, 2011

ISACA_ITGRC-LogoLast week, I had the pleasure of presenting to a lively audience at the world’s leading conference for IT governance, risk and compliance professionals. The event, hosted at the Ritz-Carlton Hotel in Orlando by the good folks at ISACA, brought together a panoply of experts in the auditing, compliance, privacy, and information security space.

I presented on the subject of Data Governance and Electronic Discovery, and how these concepts represent “flip sides of the same coin.” What was particularly rewarding for me was the level of interest and participation during our interactive case study. Thanks to all who attended and participated last week…I enjoyed myself immensely, and I hope that you found it a rewarding discussion.

Posted in Computer Forensics, Data Governance, ECM, eDiscovery, Fraud, Information Security, Investigations, Litigation Hold, Privacy, Records Retention, Social Networking | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a Comment »

Radio Show Appearance: Guest Expert on Business Fraud Awareness

Posted by Johnny Lee on September 6, 2011

ForensicUpdate editor, Johnny Lee, hit the airwaves again with colleague Philip Ratliff.  This time our host was Alan Butler, host of Atlanta’s Premier Business Talk Show “Butler on Business.”  Alan and co-host Jason Riddle facilitated a lively discussion covering a areas of concern to business owners and managers alike.

Listen as Philip Ratliff and Johnny Lee of Grant Thornton LLP’s Atlanta Forensics & Litigation practice comment on a broad variety of fraud issues facing organizations—especially in a down economy.  Segment one of the program can be found here; segment two can be found here. Please note that the views and opinions expressed are personal views and are not necessarily those of Grant Thornton; click here for more on this.

Posted in Computer Forensics, Data Governance, ECM, eDiscovery, Forensic Accounting, Fraud, Information Security, Investigations, Litigation Hold, Privacy, Records Retention, Social Networking | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a Comment »

Trick or Tweet? Radio show appearance discussing recent issues on social media…

Posted by Johnny Lee on July 27, 2011

“Social media follows you around. Unlike Vegas, what happens online stays online forever with participants, leaving behind a wake of electronic information. As millions of smart-phone, Twitter, and Facebook users take to the Internet to send messages and post updates, they may place themselves and their businesses at risk.”

ForensicUpdate editor recently hit the airwaves with colleague Philip Ratliff on San Diego’s popular legal talk radio show with Jeff Isaac, host of “The Lawyer in Blue Jeans” program, to illuminate the concerns and issues related to the risks of social media use by individuals and businesses alike.

Listen as Philip Ratliff and Johnny Lee of Grant Thornton LLP’s Atlanta Forensic & Litigation practice discuss social media risks that can become serious issues if not dealt with carefully. Please note that the views and opinions expressed are personal views and are not necessarily those of Grant Thornton; click here for more on this.

Posted in Announcement, Computer Forensics, Data Governance, ECM, eDiscovery, Fraud, Investigations, Privacy, Social Networking | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a Comment »

Focus on Forensics ─ The Economist’s role in change-of-workforce discrimination cases

Posted by Johnny Lee on June 16, 2011

From Grant Thornton: “Companies involved in either reductions or expansions in force should be prepared for scrutiny over whether the composition of affected employees or job applicants is driven by business-related factors and whether there is evidence of an adverse impact on protected class members. In The role of economists in reduction (or expansion) in force discrimination cases we discuss how economists can assist a company’s legal counsel in validating or invalidating a plaintiff’s claim that the selection process has had an adverse impact on employees in a protected class.

This timely thought leadership comes from Grant Thornton’s Focus on Forensics series, a newsletter providing valuable forensic insights into some of the most complex and critical challenges facing businesses and legal counsel today.  Click here for prior online editions of this newsletter or to subscribe to upcoming editions, and click here for more information about a Grant Thornton Forensic & Litigation Services professional near you.

Posted in Announcement, Data Governance, eDiscovery, Forensic Accounting, Records Retention | Tagged: , , , , , , , , , , , , , , , , , | Leave a Comment »

Forensic Update editor presenting at North American ISACA conference…

Posted by Johnny Lee on May 17, 2011

The world’s leading conference for IT audit, control, security and governance professionals holds its 2011 annual conference in Las Vegas. ForensicUpdate editor, Johnny Lee, will present on the topic of “Data Governance and eDiscovery: Good Faith, Bad Actors, and Questionable Data.”  Click here for more details.

Posted in Announcement, Computer Forensics, Data Governance, ECM, eDiscovery, Information Security, Investigations, Litigation Hold, Privacy, Records Retention, Social Networking | Tagged: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , | Leave a Comment »

U.K. Bribery Act — Implications for U.S. Companies…

Posted by Johnny Lee on April 21, 2011

From Grant Thornton: GT_UK-Bribery-Act-Logo“The UK has released the long-awaited guidance regarding the Bribery Act 2010, which will come into force on July 1, 2011.  This important legislation introduces more aggressive and far-reaching penalties for noncompliance than its U.S. counterpart ─ the Foreign Corrupt Practices Act.  This alert discusses six key principles of adequacy on which companies will be evaluated, as well as additional provisions that U.S. companies should consider in preparation for the legislation’s enactment.”

Read more in Decision time:  The UK Bribery Act and what it means for U.S. companies.  This timely thought leadership comes from Grant Thornton’s Focus on Forensics series, a newsletter providing valuable forensic insights into some of the most complex and critical challenges facing businesses and legal counsel today.

Click here for prior online editions of this newsletter or to subscribe to upcoming editions, and click here for more information about a Grant Thornton Forensic & Litigation Services professional near you.

Posted in Announcement, Computer Forensics, Data Governance, Fraud, Investigations | Tagged: , , , , , , , , , , , , , , , , , , | Leave a Comment »

 
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