Discretionary Cost-Shifting. While the federal rules are silent on who should bear the cost of retrieving “inaccessible data,” certain states (e.g. Texas) require that a judge order a party requesting inaccessible data to incur the cost of producing it. Other states (like California and Mississippi) give the judge the option to shift the cost of producing “inaccessible” ESI. Given that the retrieval and production of “inaccessible data” can easily run cost hundreds of thousands of dollars, the discretion (or obligation) to shift those costs can have a significant impact on the litigation budget.

The Meet and Confer. Some states (like New York and Delaware) have made the “meet and confer” the cornerstone of their methodology for managing e-discovery, while other states have abandoned the requirement altogether. Do not miss this opportunity to seize control of the e-discovery process. Skipping an early “meet and confer” may appear to save money and avoid the aggravation of dealing with the “unreasonable” opposition; however, more progressive literature on e-discovery suggests that the “meet and confer” actually saves costs in the long-run and helps insulates the parties against the risk of e-discovery “do-overs” and even more severe sanctions.

Safe Harbor. Federal Rule of Civil Procedure 37(e) forbids a court from ordering sanctions against a party who has destroyed potentially relevant ESI “as a result of the routine, good-faith operation of an electronic information system.” Although practitioners debate how “safe” the harbor really is in federal courts, several states have eliminated the “safe harbor” altogether. This means that litigation holds in state courts should be implemented as soon as litigation is reasonably anticipated.

Sanctions. It also is important to know what activities (or failure to act) will prompt the court in your jurisdiction to levy sanctions. Counsel should not assume (especially in states that don’t follow the federal rules) that state courts will levy sanctions in the same manner and for the same conduct as federal courts. This analysis will inform your discovery strategy and help insulate against the risk of state court sanctions.

via E-Discovery: 9 points impacting discovery costs.

With a two-headed Cerberus guarding consumers from potential monopolists, the fact that both the DOJ and the FTC share the same Horizontal Merger Guidelines (“the Guidelines”), undoubtedly raises a number of questions. For example, “If both agencies use the same Guidelines, why wouldn’t the results always be the same?” A more obvious question might be, “If two agencies use the same Guidelines, why have two agencies in the first place?”

Being Washington, the second query answers itself. The glib but incontestable rejoinder is that Joe Biden will walk on the Potomac before a D.C. bureaucrat cedes turf. While both the FTC and DOJ have different spheres of influence, “The unifying theme of [their joint] Guidelines is that mergers should not be permitted to create, enhance, or entrench market power or to facilitate its exercise.”

via Merger Review: FTC, DOJ Ponder Who’s On First?.

As of now, the state is only providing hard copies of the emails to those who pay for them, the Anchorage Daily News reports.

The records involve email traffic between the Yahoo accounts of Palin and her husband, Todd, and the about 50 state public officials, according to MSNBC.

News organizations and others requested the emails in 2008 under state public records law, when it became known that she and her staff used personal Yahoo accounts to conduct some state business outside the normal reach of public records requests, MSNBC reports.

The Alaska governor’s office has filed 15 requests with the state attorney general’s office to delay production of the emails, citing state regulations that allow delays when public-records requests are deemed unusually burdensome, MSNBC reports.

The state appears to have finally surmounted the burden, though it will withhold a few thousand pages of emails on the basis of claimed exceptions to public-records disclosure requirements. And some of the emails that are produced will be partially redacted.

via Alaska Grants a Closer Look at Sarah Palin’s Emails – Law Blog – WSJ.

Walker: Different corporate and compliance cultures, decentralised and inconsistent contracting procedures, and antiquated or opaque accounting practices are just some of the reasons that US companies wishing to acquire an emerging market company should be concerned about FCPA issues. BRIC countries are of particular interest because of the notable growth in their economies, although much of this growth has been in the industries where fraud and bribery can be found. Indeed, Transparency International’s 2010 Corruption Perceptions Index suggests that corruption and bribery still are perceived to be pervasive problems, revealing that out of 178 countries surveyed, with 178 being the country ranked most corrupt, Brazil ranked 69th, Russia 154th, India 87th, and China 78th.

DiBianco: Based on various factors, emerging markets continue to have an elevated perceived risk of corruption. Accordingly, enhanced diligence on corruption risks is frequently appropriate when considering a transaction in such markets. Regulators in the US and Europe have increased levels of sophistication regarding the nature of perceived risks in different geographies. For example, recent settlements identify risks in Brazil that are focused on customs clearance and duties. In India and China, past investigations have focused on payments to secure licences and permits or to ensure contract renewals with government entities. In Russia, investigations and settlements have examined payments to intermediary entities as a conduit to government officials or principals in state owned enterprises.

Pomerantz: In many emerging markets, including the BRIC countries, there is a confluence of circumstances which makes corruption risk greater. Industries, such as healthcare, oil & gas, and textiles, among others, which are privately owned in the United States and in Western Europe, are owned or controlled by the state. In addition, many of the emerging market countries have a history of controlling governments, with little transparency, which fostered a culture of corruption. Finally, the fault in this does not all lay on the side of the emerging market. There is a great deal of money to be made in emerging market economies and, as a result, companies seeking to do business with the government have a strong motivation to pay bribes. With regard to BRIC countries, bribery is clearly a problem. One need only look at enforcement actions over the past year to ascertain that corruption is alive and well in each of the BRIC countries.

FW: To your knowledge, has there been a rise in aborted or renegotiated deals due to FCPA problems?

Pomerantz: FCPA risk is increasingly a focus of the pre-deal due diligence process, as it should be. There is no doubt that deals have been both terminated or, more often, renegotiated as a result of an FCPA issue discovered during this process. Our specific experience is more in line with renegotiated deals and deferrals of transactions than outright termination.

Walker: Approximately 63 percent of the companies surveyed in the recent Deloitte LLP ‘Look Before You Leap’ survey identified corruption issues as the cause for renegotiating or aborting merger deals in the past three years. These survey results are consistent with the daunting financial penalties incurred recently by companies whose subsidiaries engaged in corrupt practices, including the $5m in civil and criminal fines Tyson Foods agreed to pay this February because of payments by a Mexican subsidiary to government officials, and the combined $137m in fines and disgorgement Alcatel-Lucent S.A. agreed to pay in December 2010 relating to gifts and payments paid by subsidiaries to foreign officials in several countries. Lack of knowledge that the acquired company’s subsidiaries paid bribes to conduct business will not shield the acquirer from successor liability, and therefore renegotiating or aborting a deal upon the discovery of FCPA problems often is warranted.

via TalkingPoint: Addressing FCPA issues in emerging market deals.

“These types of events provide warning signals to companies that use service providers such as Epsilon,” says Sotto, a managing partner of Hunton & Williams New York office, where her practice focuses on privacy, data security and information management issues. “Companies should be sure that have data-security measures in place,” and that the third parties with which they work rely on the same high-level security measures as well. “Make sure you have strong contractual obligations in place, to ensure that the third-parties are securing data in the same way you require,” she says.

The Epsilon breach is an interesting one, since e-mail addresses alone are not considered sensitive, Sotto says. As such, databases that house consumer e-mail files are typically never encrypted, nor are they protected with additional layers of security, such as dual-layer authentication, for access. For a company like Epsilon, e-mail addresses need to be readily accessible, but this breach could prove that ready accessibility may not be the most prudent route.

via Epsilon Breach: Risks and Lessons.

Why do we ask?

Because getting it through the regulators isn’t exactly going to be easy. You’re going to have to marshal a whole bunch of lawyers to send a whole lot of briefs off to a lot of people, trying to convince them that the deal is good for consumers.

The heat is rising. The latest: New York Attorney General Eric Schneiderman said on Tuesday that he would put AT&T’s plan to buy T-Mobile from Deutsche Telekom under a “thorough review” of the potential impact on wireless competition in the state. Click here for the Dow Jones story.

Schneiderman is the first attorney general to publicly announce a review of the $39 billion deal. Based on past telecom deals, other state attorney generals are likely to weigh in.

But wait, that’s not all. Of course, the deal is expected to face heavy scrutiny from the FCC and Christine Varney’s team at the Department of Justice.

via NY AG Joins Chorus Of Folks Looking Hard at AT&T/T-Mobile Deal – Law Blog – WSJ.

The Pulsar.2 line of solid state disk drives use the less expensive multi-level technology and is available in 100GB, 200GB 400Gb and 800GB size with the latter featuring optional self-encrypting drive (SED) technology.

All four will come with 6Gbps SAS or SATA 3 with the 800GB coming only with the enterprise oriented SAS interface; interestingly, they all feature error-correction technology that has been produced in partnership with Samsung, one of Seagate’s biggest competitors; Seagate declined to provide performance figures for the Pulsar.2 SSDs

Up the ladder is the Pulsar XT.2 which is a single-level cell model available in 100GB, 200GB and 400GB iterations with 6Gbps SAS interface only.

The SSD can reach up to 48K random read IOPS (input/output per second) in 4KB blocks with a peak transfer rate of 360MBps (just under 3Gbps).

via Seagate Unveils New Enterprise SSDs | ITProPortal.com.

Securing data storage is especially important for small businesses, due to legal specifications that require companies to report breaches, and to maintain data for long periods of time for accountability purposes.

More than 45 states have data privacy laws with encryption safe harbors. In 2008, the average cost of notification regarding a data breach was $6.65 million per incident.

That adds up fast if a flash drive with company personnel and salary data is compromised, for example. At the Storage Visions 2011 conference here in Las Vegas, another stat thrown around that’s gives pause: Since 2005, over 345,124,400 records containing sensitive personal information have been involved in security breaches.

via Self-Encrypted Drives Set to Become Standard Fare – PCWorld Business Center.

The project, started by IBM six years ago, may result in massive amounts of personal storage that could run on a single battery for weeks at a time and could possibly last for decades.

The technology promises a solid state memory with the cost and storage capacities rivaling that of magnetic disk drives but with much improved performance and reliability.

Within the next ten years, “racetrack” memory, so named because the data “races” around the nanoscale wire “track,” could lead to solid state electronic devices — with no moving parts, and therefore more durable, says IBM.

via IBM’s ‘Racetrack Memory’ Inches Towards Reality – International Business Times.

via Tablets, Compared – Interactive Feature – NYTimes.com.