Expert Analysis

• E-Discovery Quarterly: Recent Rulings On ESI Control

  

  Several recent federal court decisions have perpetuated a split over what constitutes “control” of electronically stored information — with judges divided on whether the standard should turn on a party's legal right or practical ability to obtain the information, say attorneys at Sidley.

• Record Penalty Sets Stage For FinCEN Whistleblower Awards

  

  The Financial Crimes Enforcement Network’s record $80 million penalty against Canaccord, together with the agency's recently proposed rule on whistleblower awards, signals an increasingly aggressive enforcement posture and illustrates the significant financial stakes associated with reporting violations, says Marlene Koury at Constantine Cannon.

• Del. Ruling Shows Power Of Postclose Governance Provisions

  

  After the Delaware Court of Chancery reinstated a target company's CEO as part of the equitable remedy in Fortis Advisors v. Krafton, deal parties should emphasize the importance of postclosing governance provisions to earnout economics, knowing that they will have to live with these provisions for the duration of the earnout period, say attorneys at Sidley.

• Employer Considerations After FTC's Noncompete Warning

  

  In light of Federal Trade Commission leadership's recent message that the agency remains committed to challenging noncompetes that operate as restraints of trade, employers should take several practical steps in order to reduce regulatory risk, including auditing existing agreements and narrowing restrictions, says Christopher Pickett at UB Greensfelder.

• How Banks Can React To Risks In FinCEN Whistleblower Rule

  

  Financial institutions should reassess and, if necessary, strengthen existing policies, procedures and other frameworks related to whistleblowers and internal reporting in light of the Financial Crimes Enforcement Network's recent proposal to formalize a whistleblower award program, say attorneys at Arnold & Porter.

• 2 Discovery Rulings Break With Heppner On AI Privilege Issue

  

  While a New York federal court’s recent ruling in U.S. v. Heppner suggests that some litigants’ communications with AI tools are discoverable, two other recent federal court decisions demonstrate that such interactions generally qualify for work-product protection under the Federal Rules of Civil Procedure, says Joshua Dunn at Brown Rudnick.

• Isshin-Ryu Karate Makes Me A Better Lawyer

  

  My involvement in martial arts, specifically Isshin-ryu, which has principles rooted in the eight codes of karate, has been one of the most foundational in the development of my personality, and particularly my approach to challenges — including in my practice of law, says Kaitlyn Stone at Barnes & Thornburg.

• 5 Key Questions Attys Should Ask About Statistical Analyses

  

  Even attorneys without a background in statistics can effectively vet the general concepts of a statistical analysis by asking targeted questions and can thereby reinforce the credibility and relevance of expert testimony — or expose its weaknesses, say Katrina Schydlower and Christopher Cunio at Hunton and Kevin Cahill at FTI Consulting.

• 7 Mistakes To Avoid When Using Trial Graphics

  

  With several federal district judges recently expressing frustration with the overuse of PowerPoint slides in trial presentations, now is a good time for lawyers to assess when and how they use visuals to make sure their messages are communicated as effectively as possible, say Mark Rosman at Proskauer and Dan Bender at Digital Evidence Group.

• Artemis II Highlights Earthbound Employment Law Risks

  

  The recent Artemis II launch marks a milestone in human spaceflight and expanding commercial participation, but as companies race to the stars, their compliance practices must address the workforce needs on the ground, as extraordinary operational achievements will be evaluated under ordinary legal standards, say attorneys at Seyfarth.

• State Bars Need To Get Specific About AI Confidentiality

  

  Lawyers need to put actual client information into artificial intelligence tools to get their full value, but they cannot confidently do so until state bars offer clear, formal authority on which plan tiers of the three most popular generative AI tools are safe to use when sharing specific client details, says attorney Nick Berk.

• How Calif. Safety Worker Pension Bill Could Cost Employers

  

  Public employers should carefully consider how pension costs and bargaining concerns could change under a California Legislature bill that would increase retirement benefits for safety employees like police and firefighters, which could erode previous efforts to fully fund the public retirement system without necessarily improving worker retention, says Michael Youril at Liebert Cassidy.

• The Evolution Of States' Workplace Violence Prevention Laws

  

  Utah's new law requiring hospitals to implement comprehensive workplace violence reporting systems continues a broader trend of state efforts to expand workplace protections in the absence of sufficient federal regulations, say attorneys at Ogletree.