Analysis

  • New York Law Journal | Analysis

    Get a Warrant: The Government's Unconstitutional Practice of Subpoenaing Private Text Messages Directly from Personal Cell Phones

    By Michael P. Robotti and Lauren Engelmyer | February 9, 2024

    This article examines Supreme Court precedent requiring a warrant to search a cell phone, and what lawyers should consider when counseling clients on whether they should turn over text messages in response to a government subpoena.

  • New York Law Journal | Analysis

    Felon in Possession, New York Gun Ban and Disqualification of Counsel

    By Thomas Kissane and John Moore | February 8, 2024

    This column reports on several significant representative decisions from the U.S. District Court for the Eastern District of New York. Judge Kiyo A. Matsumoto denied defendant's motion to withdraw his guilty plea and dismiss the indictment charging him as a felon in possession. Judge Frederic Block dismissed an action for a declaration holding New York's ban on assault weapons unconstitutional. Magistrate Judge Lee G. Dunst granted a motion to disqualify counsel.

  • New York Law Journal | Analysis

    Title IX: A Paradigm of Legal Nuance

    By Helene M. Weiss and Daniel Pollack | February 8, 2024

    Title IX investigations are supposed to be a fair and effective tool to make informed decisions about student complaints. Not surprisingly, the practical application of this federal law is often as nuanced as the behaviors that brought about the complaint to begin with. A recent case demonstrates this very well.

  • New York Law Journal | Analysis

    SDNY Outreach to 'Whistleblowers' Takes Page from Main Justice Playbook

    By Robert J. Anello and Richard F. Albert | February 7, 2024

    The Southern District of New York's latest tool in white-collar criminal enforcement, SDNY's Whistleblower Pilot Program, is the first of its kind, offering a non-prosecution agreement to individuals in exchange for working with SDNY prosecutors to "figure out what [they] don't know."

  • New York Law Journal | Analysis

    Conducting Effective Workplace Investigations

    By Nicholas J. Pappas and Jennifer R. Coates | February 6, 2024

    This article outlines a general framework for approaching investigations into employee complaints. The authors recommend that employers approach investigations with an organized and thoughtful plan that allows the investigator and the employer both to assuage understandable concerns of employees and create an environment where a focused fact-finding investigation can occur.

  • The American Lawyer | Analysis

    How to Not Get Hacked in 2024

    By Dan Roe | February 5, 2024

    After a record year for data breaches, law firms face more threats to their data than ever before.

  • New York Law Journal | Analysis

    Spoliation of Evidence in Malpractice Actions

    By Thomas A. Moore and Matthew Gaier | February 5, 2024

    There have been a significant number of Appellate Division decisions addressing motions by plaintiffs in malpractice actions seeking sanctions against defendants for spoliation of evidence, as well as a few involving malpractice defendants seeking sanctions against plaintiffs. Those decisions are the subject of this column.

  • New York Law Journal | Analysis

    Federal Rule 37(e) Applies to Content and Metadata of ESI

    By H. Christopher Boehning and Daniel J. Toal | February 5, 2024

    Since 2015, courts frequently have utilized Rule 37(e) when deciding motions for sanctions for ESI spoliation. One key question rarely addressed is whether, in addition to the content of ESI, Rule 37(e) also applies to its metadata. In a recent decision, where spoliated metadata would have provided details relevant to a party's claims, a court determined that it does.

  • New York Law Journal | Analysis

    Court of Appeals Upholds Sweeping Premise of New Discovery Law

    By Barry Kamins | February 5, 2024

    In 'People v. Bay', the court acknowledged the raison d'etre of the new law: that the People cannot be ready for trial without having fully complied with their discovery obligations.

  • New York Law Journal | Analysis

    The Current (and Future) State of AI in Legal Finance

    By David Perla | February 2, 2024

    In this article, David Perla of Burford Capital examines how AI is being used and can potentially be used in legal finance—the practice of providing financial resources and funding for litigation and arbitration claims. Specifically, he examines the role of AI in sourcing investments, making investment decisions and predicting outcomes once investments are established.

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