SEC Enforcement Manual - Electronic Discovery
The SEC published an Enforcement Manual early this month (Oct 2008). Far from a simple technical specification, this document explains the agency’s workings in great detail.
From its own compliance with mandatory disclosures (FRCP 26(a)) and disclosing the agency’s shared drive structures, the manual, published by the Chief Counsel, should send chills down the spine of publicly traded companies, particularly those caught in the cross hairs of the financial crisis.
The end of the manual details the agency’s casual informal referral policy. Specific categories of referrals are: criminal authorities, professional licensing boards, state agencies, self regulatory organizations and the Public Company Accounting Oversight Board.
There are instructions for preservation, “imaging” and production. Privilege logs are specified in detail, including the attorney name and client name. There are instructions on maintaining authenticity and a section mandating certification of completeness of production.
The agency is current on newly minted Federal Rule of Evidence 502 (FRE 502), and includes an entire section on how the agency should behave around requesting waivers of privilege and identifying inadvertently produced privileged material.
The agency uses Concordance and Iron Mountain, and is now encouraging staff to request electronic productions with extracted text to save costs.
The manual is here.
Thanks to the Peter Henning and his White Collar Crime Law Prof’s blog for the link to a detailed memo by Gibson Dunn.
Filed under Sound Evidence, Technology Counsel.
December 17th, 2008 at 9:32 am
To bad the SEC spends more time generating guidelines than actually investigating referrals!
The SEC’s performance, especially with this weeks revelations regarding Mr. Madoff, is deplorable.
This past year has shown that the institutions we should regard as bastions of right, the Bond Rating Firms, the SEC and the leading investor firms and investment Banks, are corruptable and untrustworthy entities, while many of us stuggle daily to ensure our employers are compliant, the organizations that rank, rate and review us are stealing us blind.