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9TH CIRCUIT WON’T STOP MCKESSON DISCOVERY The Ninth Circuit U.S. Court of Appeals on Friday declined to shield sensitive internal corporate investigations from plaintiff attorneys — at least for now. The decision means plaintiffs can continue to use information from criminal prosecutions in cases of alleged corporate malfeasance. The internal investigations, which are conducted after allegations of corporate wrongdoing, are frequently turned over to government prosecutors in exchange for leniency. Plaintiffs counsel then ask for the documents in discovery. Corporations had hoped to keep them out of plaintiffs’ hands, afraid they would be used as roadmaps to successful securities fraud suits. But the Ninth Circuit said that the issue had not been properly presented. U.S. v. Bergonzi, 05 C.D.O.S. 2822, arrived at the circuit in an interlocutory appeal filed by McKesson Corp. in connection with the criminal prosecution of former Vice President Albert Bergonzi. He is one of several executives targeted by the Northern District U.S. attorney’s office in connection with improperly recorded revenues following the 1999 merger between McKesson and HBO & Co., which cost investors $9 billion. Bergonzi pleaded guilty. Skadden, Arps, Slate, Meagher & Flom conducted the investigation for McKesson. In September, Skadden lawyers conceded that the criminal defendants are entitled to access, but asked Ninth Circuit Judges Raymond Fisher, William Fletcher and Robert Beezer to OK a protective order that would keep the information from plaintiffs. On Friday, in a four-page per curiam opinion, the Ninth Circuit criticized Skadden for jumping the gun with an interlocutory challenge instead of waiting for the district court to consider its own protective order. “Any potential prejudicial consequences of the district court’s disclosure order are speculative,” according to the opinion, which went on to note that the sort of relief McKesson sought is an “open question” in the circuit. — Jeff Chorney LATHAM PARTNER PICKED FOR DOJ POST WASHINGTON — The White House has tapped Latham & Watkins partner Alice Fisher to run the Justice Department’s Criminal Division. Fisher, a protege of Secretary of Homeland Security Michael Chertoff’s, will replace outgoing chief Christopher Wray. From 2001 until 2003, Fisher, 38, served as Chertoff’s deputy in the Criminal Division, overseeing major fraud and terrorism cases. However, unlike Chertoff and Wray, Fisher has never served as a federal prosecutor. Instead, Fisher has spent the bulk of her career as a white-collar defense lawyer at Latham. To many observers, the choice of a lawyer with no prosecutorial experience to run the Criminal Division is a surprising one. If confirmed, Fisher will have to overcome skepticism from federal prosecutors in the field. “The most important thing for line prosecutors is to have one of their own,” said one former assistant U.S. attorney before Fisher was formally identified as the administration’s pick. A graduate of Catholic University Columbus School of Law, Fisher worked alongside Chertoff in the mid-1990s as a staff lawyer on the Senate Whitewater investigation. — Legal Times

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