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Genevieve Moreland is a discovery counsel in Crowell & Moring’s Washington, D.C. office. Genevieve focuses on discovery issues in complex litigations and government investigations, as well as in transactional matters such as mergers and acquisitions. Genevieve has significant experience in all phases of discovery, including leveraging technology to manage large volumes of documents, managing collection processes, and managing large-scale document reviews and productions.

As employees are increasingly working from home during the COVID-19 pandemic, many communications that would typically occur face-to-face are now taking place over chat systems, such as Skype, Bloomberg Messaging, and Slack. Chats are often more informal and unfiltered than other forms of written communication such as email, and often do not provide context for the conversation. And with that comes legal risk.

This is because chats may qualify as business documents subject to discovery in litigation—especially when those chats discuss business topics. See, e.g., LBBW Luxemburg S.A. v. Wells Fargo Sec. LLC, Case No. 12-CV-7311, 2016 WL 1660498, at *8 (S.D.N.Y. Mar. 29, 2016) (ordering production of Bloomberg instant messages); JUUL Labs, Inc. v. 4X PODS, Civ. No. 18-15444, 2020 WL 747405, at *14-15 (D.N.J. Feb. 13, 2020) (ordering quarterly reporting during the pendency of a lawsuit based on internal Skype messages indicating defendants would take steps to avoid payment of any judgment that was ultimately entered); West Publ’g Corp. v. LegalEase Solutions, LLC, Case No. 18-cv-1445, 2019 WL 8014512, at *8 (D. Minn. Nov. 22, 2019) (ordering non-party’s production of Slack messages).

Companies are therefore left with the difficult question:  how can you best protect against the risks of online chats, while balancing the business need for them?  The answer may lie in the concept of proportionality.Continue Reading How to Limit Litigation Risk from the Increased Use of Chat Programs During the COVID-19 Pandemic

The District of Columbia Bar Rules of Professional Conduct Review Committee (“Committee”) recently released recommended changes to D.C. Bar rules 1.1, 1.6, and 4.4 to address the increased focus and evolving landscape of E-Discovery and technology in law. All D.C. practitioners should take notice of these potential rule changes, and ensure they stay current—or engage those with appropriate expertise—on these quickly changing areas of practice.

The proposed changes are as follows:
Continue Reading Amendments Proposed To D.C. Rules of Professional Conduct to Address

EDRM and the Bolch Judicial Institute at Duke Law recently released Technology Assisted Review (TAR) Guidelines (Guidelines) with the aim “to objectively define and explain technology-assisted review for members of the judiciary and the legal profession.” Among the topics covered are the validation and reliability measures practitioners can use to defend their TAR processes. This post summarizes this validation and reliability guidance, which has the potential to be a widely-referenced authority on this topic going forward.

According to EDRM, there are no “bright-line rules” governing what constitutes a reasonable review or one standard measurement to validate the results of TAR. Instead, principles of reasonableness and proportionality as set forth in FRCP Rule 26 generally guide the inquiry.
Continue Reading EDRM’s TAR Guidelines: Validity Measures and Considerations for Practitioners