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John Reed Stark

In the following guest post, John Reed Stark President of John Reed Stark Consulting and former Chief of the SEC’s Office of Internet Enforcement, takes a look at questions of confidentiality surrounding a discovery dispute between class action plaintiffs and a data breach victim company relating to forensic work conducted by Crowdstrike, Inc. in connection with a 2018 data security incident at Marriott International, Inc. As Stark notes, the issue of protecting the confidentiality of post-data breach forensic findings (when the forensic firm is typically engaged by counsel) has become of critical importance and has significant consequences. A version of this article previously was published on Cybersecurity Docket. I would like to thank John for allowing me to publish his article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is John’s article.
Continue Reading Guest Post: More Battles Over Digital Forensic Findings

John Reed Stark

Is a company’s post-breach forensic report subject to discovery in subsequent breach related litigation? That is the question that John Reed Stark, President of John Reed Stark Consulting and former Chief of the SEC’s Office of Internet Enforcement, examines in the following guest post. A version of this article originally appeared on Securities Docket. I would like to thank John for allowing me to publish his article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is John’s article.
Continue Reading Guest Post: Data Breach Forensic Reports: Keeping a Grail Document Confidential

Along with the recent rise in third-party litigation financing has come a widely-held perception that there is something vaguely shady about it. For example, a May 12, 2018 New York Times article, in what is nearly a compulsory formulation, described litigation funding as “unregulated and opaque.”  This common perception about litigation funding is one reason why I have long felt that eventually that some form of  litigation financing disclosure is going to be required – indeed, one state has already instituted rules requiring the disclosure. The possibility for more universal disclosure requirements moved one step closer last week, when three U.S. Senators introduced legislation that would make litigation financing disclosure mandatory in certain kinds of federal court lawsuits. The draft bill has predictably drawn praise and scorn from commentators with opposing viewpoints, but the key thing at this point is that the debate about litigation financing disclosure has moved from the fringes and has now taken center stage.
Continue Reading U.S. Senators Introduce Bill to Require Litigation Funding Disclosure

One of the many issues under discussion when the question of litigation financing regulation comes up is whether parties’ use of litigation financing must be disclosed. One federal district court has implemented provisions requiring the disclosure of litigation financing, and the state of Wisconsin recently adopted measures requiring litigation financing disclosure. The federal Advisory Committee on the Rules of Civil Procedure is separately studying measures that would require disclosure. In the meantime, other courts continue to struggle with the disclosure issue. The federal district court judge in Ohio presiding over the multidistrict opioid litigation has fashioned his own litigation financing disclosure approach; Northern District of Ohio Judge Dan Aaron Polster has ordered the litigants in the opioid litigation to provide litigation funding disclosure to the court itself, rather than to the parties. Interestingly, this approach has drawn praise from a leading third-party litigation funder, as discussed below. Judge Polster’s May 7, 2018 order can be found here.
Continue Reading Federal Judge Orders Litigation Funding Disclosure to the Court, Rather than to Opposing Parties

uschamberLitigation Funding is an increasingly important part of the current litigation scene, but it remains controversial. One of the important issues under debate is the question of whether or not litigation funding arrangements must be disclosed. In a recent discovery-related ruling (here), Northern District of California Judge Susan Illston confronted this question of whether or not a class action plaintiff must disclose third-party litigation funding contracts. As discussed below in the following guest post from Lisa Rickard, the President of U.S. Chamber Institute for Legal Reform, takes a look at Judge Illston’s decisions and examines its relevance in the ongoing debate regarding litigation funding. I would like to thank Lisa for her willingness to publish her article as a guest post on my site. I welcome guest post submissions from responsible authors on topics of interest to this site’s readers. Please contact me directly if you would like to submit and article. Here is Lisa’s guest post.
Continue Reading Guest Post: Litigation Finance: Stop The Hide-And-Seek Game

Gill-mary2015
Mary Gill
Quiros-courtney
Courtney Quirós

In many instances when allegations of wrongdoing surface at a company, the appropriate course for the company’s board will be to appoint an independent committee to investigate the allegations. The investigation can be conducted in a way to preserve confidential information and privileges. However, recent case law developments underscore the fact that in some instances the company’s shareholders may have access to the records of the investigation even when all steps are taken to preserve confidentiality and privileges. In the following guest post, Mary Gill and Courtney Quirós of the Alston & Bird law firm take a look at the recent case law developments and consider the implications of these recent cases.  Mary is a partner and Courtney is an associate in the Securities Litigation Group at the firm.  This article was prepared for a panel at the 23rd Annual Securities Litigation and Regulatory Practice Seminar, to be held in Atlanta on October 23, 2015.

I would like to thank Mary and Courtney for their willingness to publish their guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Mary and Courtney’s guest post.

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I. Introduction

In the current environment, it is not uncommon for a company, its executives, or directors to be presented with allegations of wrongdoing.    Whether the issues are raised by a concerned or disgruntled employee, the Securities Exchange Commission, or the Department of Justice, the company should be prepared to promptly determine the nature and severity of the potential problem.  Generally, the appropriate course in these situations is for the board of directors of the company to appoint an independent committee to oversee an internal investigation into the allegations.  Through an internal investigation, the company can determine the factual nature and scope of the alleged misconduct and analyze the legal implications of the situation, which will allow the company’s board of directors to take appropriate remedial action if necessary. The investigation should be conducted in such a way to achieve maximum credibility, integrity, and accuracy, while at the same time preserving all applicable privileges and legal defenses for the company to the greatest extent possible.  A recent Delaware Supreme Court decision serves as a reminder that even where companies and their counsel take care to protect the confidentiality of an internal investigation, there is no guarantee against shareholders’ access to these records.
Continue Reading Guest Post: Access to Internal Investigation Records by Shareholders