When water cooler chatter became less common when the pandemic hit in 2020, chat platforms and text messages (IM) filled the gap.  Collaboration tools like Zoom, Microsoft Teams, Slack, Bloomberg Chat and IM are now ubiquitous, with more than 67% of white-collar employees still “working from home to some degree.”[1] Indeed, a survey of IT managers reported that 91% of all companies now use at least two messaging apps.[2]

As more companies integrate these channels into their typical business practices, more and more legal matters will involve the review of chat message conversations. It is imperative that companies have processes and systems in place to control, retain, monitor, and review such business communications.

There are numerous challenges for business in reviewing chat data, including identifying and accessing chat platforms, handling ephemeral data, identifying participants (with various aliases or usernames), decoding the cryptic nature of some messages, coordinating the attachments and responses to those messages, and making sense of notices when parties enter or leave the conversation.  People also often speak differently in a chat setting (more tersely, and using shorthand, emojis, slang, abbreviations, and images) than in other communication forms. Thus, external context may be even more essential to understand the nuances of the matter being discussed.

Continue Reading From The Water Cooler to the DMs – Tips and Tricks for Efficiently Reviewing Chat Communications

When you first hear about “auto-deleting” or “ephemeral” messaging, you may think of nefarious techniques to hide evidence of wrongdoing. In fact, ephemeral messages – which are typically end-to-end encrypted and set for deletion shortly after they are sent and/or read – in various forms are routinely used for business and other relevant communications. That means that they must be considered for preservation and potential disclosure, raising all sorts of legal, technical, and optical considerations. This came up recently in Federal Trade Commission v. Noland, No. CV-20-00047-PHX-DWL, 2021 WL 3857413 (D. Ariz. Aug. 30, 2021), where the court considered the use of ephemeral messages in the context of an investigation by the Federal Trade Commission (FTC) of the company Success By Health (SBH) and its officers for a potential pyramid scheme. The day after learning of the inquiry, the officers switched from their existing communication means (WhatsApp and iOS messages) to other encrypted mobile messaging apps including Signal, which they set to “auto-delete” all messages on reading. Company leaders exchanged thousands of such messages over many months, despite the FTC’s instruction to preserve documents and suspend ordinary-course document destruction. Further, defendants colluded to remove all traces of the apps and messages from their phones right before turning them over for inspection. The truth came out when the FTC received anonymous information alerting it to the undisclosed use of the apps. On the FTC’s motion against defendants for sanctions, District Court Judge Lanza found defendants had intentionally deprived the FTC of relevant documents, and sanctioned them under Fed. R. Civ. P. 37(e)(2) with an adverse inference that the spoliated evidence was unfavorable to the individual defendants.

Examples of Ephemeral Platforms

Continue Reading Ephemeral Messages: Handle With Care

Illinois’ Biometric Information Privacy Act (“BIPA”) regulates companies that obtain, use, store, sell, and disclose the biometric data of Illinois residents.  Companies that fall under BIPA must provide notice to and receive consent from Illinois residents before obtaining their biometric data, and must take reasonable care that the biometric data remains secure.  In addition, BIPA includes a private right of action, and if a regulated company fails to comply with its provisions, statutory damages can be as high as $5,000 for each violation.  BIPA litigation is active in Illinois State Court and in Federal Courts across the United States.

A sticking point for litigants has been the statute of limitations for a party to bring a BIPA claim.  BIPA does not include its own statute of limitations.  Generally speaking, plaintiffs have argued that a longer limitations period applies, such as the five-year limitations period under section 13-205 of Illinois’ Code of Civil Procedure.  And generally speaking, defendants have argued that a shorter limitations period applies, like the one-year period under section 13-201 of the Code of Civil Procedure.

Continue Reading A Statute of Limitations for BIPA Claims? We May be One Step Closer

The 11th Circuit upheld a decision to unseal “embarrassing internal communications” between members of the United Network for Organ Sharing (“UNOS”) relating to its new policy directing liver transplants to go to the sickest patients within a certain radius of the donor.

The Court opened its opinion with a powerful question: “Organ donation saves lives—but whose?” Decades ago, Congress enacted the National Organ Transplant Act which authorized UNOS to create policies to facilitate the equitable distribution of organs among potential recipients. UNOS recently approved the Acuity Circles Policy, claiming its intent is to provide more liver transplants to patients in the greatest need, even if they are farther away from donors. Several hospitals and transplant centers who oppose the policy (and filed this lawsuit to prevent implementation of the policy), argue that it will make it more difficult for those outside of urban areas – and in particular those in socioeconomically disadvantaged areas – to access organs.

During discovery, the hospitals argued that certain of UNOS’s emails exposed “bad faith and improper behavior” in its policymaking process and should be unsealed and considered as proof that the policy change was arbitrary, capricious, and the result of a denial of due process. The Georgia District Court agreed, and UNOS appealed.

In determining whether to keep certain records sealed, Courts must evaluate whether good cause exists to prevent access, balancing “the asserted right of access against the other party’s interest in keeping the information confidential.”  Concerns about trade secrets or other proprietary information are particularly relevant and are not taken lightly; such concerns can overcome the public interest in access to judicial documents.

Here, the 11th Circuit ultimately found that the emails involve policymaking on a topic of genuine public concern, and do not contain proprietary information or trade secrets that require protection. The Court further explained that UNOS offered “no particularly compelling reasons” to keep the documents sealed in the first place. Specifically, while UNOS’s “eagerness to keep the documents secret is understandable” the Court noted that a desire to keep indiscreet communications out of the public eye “is not enough to satisfy our standard for good cause.” Even lack of relevancy is not a sufficient ground to seal documents in the 11th Circuit, absent a specific showing that the materials were offered for an abusive or improper purpose.

This case demonstrates the high burden litigants may face to overcome the presumption of public access to judicial records, particularly where records do not contain obvious trade secrets or proprietary information.

The latest report in the In re Opioid litigations is a sharp reminder not to fall short in your disclosure obligations

When it rains it pours. The ongoing saga of disclosure disputes in the many In re Opioid litigations started a new chapter with the release of a Report (referenced below) by former Justice Maltese, acting as Referee in a New York state court Opioid case.

The Report, which sketches out a series of discovery mishaps and omissions stretching across multiple courts and cases, as well as some apparent sharp dealing by defense counsel, is a strong reminder to be thorough and exercise independent judgment in fulfilling discovery obligations. In particular in mega-litigations such as the In re Opioid matters, even the smallest discovery disputes may be weaponized. Plaintiffs are actively looking for opportunities to attack defendants for discovery irregularities, and often seeking the extreme sanctions when they do. Outside counsel for defendants are not out of the line of fire. Here, because the defendant resolved the underlying case before the Report was released, Justice Maltese’s hammer largely fell on defense counsel for counsel’s, client’s and discovery vendor’s mistakes leading to the belated production of relevant interview notes, and what the court viewed as related gamesmanship.

The Report (at 18-19) briefly discusses the aggrieving conduct, finding that

Continue Reading Don’t fall short in your disclosure obligations: In re Opioid litigations.

Finding that a lower court had underestimated the harm resulting from the government’s seizure and ongoing possession of privileged material, the Fifth Circuit ruled recently that a “taint team” process was insufficient to protect the rights of the party holding the privilege.  The appellate court’s ruling is part of a trend in which courts have expressed skepticism that the use of “taint teams” by the government is an adequate safeguard against undermining the sacrosanct attorney-client privilege.

As part of a criminal investigation spawned by civil False Claims Act qui tam actions, the government executed search warrants at the offices of Harbor Healthcare System and seized “a wealth of information protected by the attorney-client privilege” including communications between the company’s Director of Compliance and its outside counsel.  Harbor subsequently filed a motion for return of property as provided for in Federal Rule of Criminal Procedure 41(g).  The District Court ultimately granted a government motion to dismiss that proceeding, finding that a “filter team” and screening process were adequate to protect Harbor’s privileged information.

Continue Reading Fifth Circuit Bolsters Company’s Claim for Return of Privileged Documents Seized by Government

As the use of collaboration and cloud storage platforms expand, litigants and courts are facing increased challenges in keeping up with e-discovery requirements created with different technologies in mind. One example involves the discovery obligations associated with files referenced in email only by hyperlink. Should a litigant be required to find and produce that referenced document as if it were an attachment? What if that is very hard to do? What if the file has moved or changed in the interim? The Southern District of New York recently addressed these issues and held that – for a host of practical and technical reasons – such hyperlinked documents should not “necessarily” invoke obligations to collect and produce the referenced document.

Continue Reading Court Finds Hyperlinked Documents Are Not Attachments for Production Purposes

Please join us for an investigations-focused webinar series where our team of litigators, former prosecutors, and regulatory attorneys will discuss useful strategies for navigating a government probe or ensuring compliance with regulations and corporate policies. Our presenters will provide companies with critical information for navigating commercial risk and enforcement. This webinar series covers broad-reaching investigations in a variety of areas, including:

  • Nuts & Bolts of Investigations: Protecting Privilege
  • Labor, Employment, and COVID-related Investigations
  • Congressional Investigations & National Security
  • Antitrust & Competition Investigations
  • Government Contracts Investigations:  FCA and Beyond
  • Digital Assets Investigations
  • Anti-corruption & Sanctions Investigations
  • Trade Secrets Investigations
  • Health Care Investigations:  FCA and Beyond
  • Cybersecurity Investigations
  • Environmental Investigations
  • PPP Investigations

Please click here for the full agenda and click here to register.

The new year has brought one of the most comprehensive court decisions yet reminding attorneys in no uncertain terms of the rules mandating fundamental competency in the treatment of electronically stored information (“ESI”). Falling short may get both lawyers and clients sanctioned.

In January 2021, U.S. District Judge Iain Johnston issued his opinion in DR Distributors, LLC v. 21 Century Smoking, Inc. (N.D. Ill. No. 12 CV 50324) coming down hard on defense counsel for failing to possess the skills and diligence necessary to competently meet their ESI discovery obligations. In a detailed opinion that is well worth reading (if you have an hour or two), the court recounts the many e-discovery “missteps, misdeeds, and misrepresentations” both of client and counsel that culminated in the issuance of harsh evidentiary and cost-shifting sanctions on each.

Continue Reading Off the edge of the E-Discovery map, there be monsters! Federal court issues epic opinion sanctioning counsel for failure to show competence and diligence in meeting ESI discovery obligations.

Crowell & Moring’s E-Discovery and Information Management (EDIM) group is pleased to announce the introduction of “CMD,” an integrated E‐Discovery solution. CMD provides access to cutting-edge analytics, processing and hosting technology, AI-driven workflows combined with our Chambers-rated legal advocacy, consulting, review and professional services to accelerate and improve data analysis.

Please click here to read the full press release.