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The SEC and E-Discovery

By Wallis Hampton and Elizabeth Russo; Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates; and Canaan Himmelbaum, Fios Inc.

Recent years have seen dramatic shifts in the Securities and Exchange Commission’s approach to enforcement actions with respect to e-discovery. Beginning with its 2001 Seaboard Report, the SEC has heavily emphasized the importance of cooperation in investigations while simultaneously underscoring the perils of being perceived as uncooperative.

In 2004, Stephen Cutler, the SEC’s Director of Enforcement at the time, noted that the SEC “seeks to recognize, in its charging and sanctioning decisions (and in its decisions not to charge and not to sanction), efforts by companies to police themselves, report problems to the government and establish a solid culture of compliance.”[1] More recently, the SEC has begun utilizing cooperation credits and deferred prosecution agreements as incentives, both of which historically have been limited to criminal prosecutions. If these carrots aren’t sufficient, the SEC also wields a number of powerful sticks, including the threat of obstruction charges and the risk of SEC action against attorneys themselves.
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Leveraging Cloud-Based Delivery Capabilities for DIY E-Discovery

By Kroll Ontrack

Today, e-discovery law and practices are in a continuous state of flux, which underscores the need for corporations and law firms to continually evolve in order to meet their ever-changing ESI obligations. IDC’s Vivian Tero recently published a white paper sponsored by Kroll Ontrack, “Leveraging Cloud-Based Delivery Capabilities for Do-It-Yourself (DIY) eDiscovery,” which highlights this very fact, and explains that there are several factors currently driving change in e-discovery.
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