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Mike Lieberman is a partner in Crowell & Moring's Litigation, Health Care, and White Collar & Regulatory Enforcement groups, and co-chair of the firm's E-Discovery Practice. He litigates complex matters in federal, state, and arbitral forums, with a particular focus on commercial health care disputes, class actions, discovery disputes, and fraud cases. Mike's clients include managed care companies, health benefit plans, clinical laboratories, government contractors, corporate and individual criminal defendants, and various other corporate commercial litigants.

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:
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On September 17, the U.S. Tax Court in Dynamo Holdings Ltd. P’ship v. IRS, 143 T.C. No. 9 added itself to the growing list of courts that have approved the use of predictive coding in litigation.

As we have previously noted, predictive coding or Technology Assisted Review (“TAR”) has increasingly been utilized in large scale document productions in a wide variety of litigation and government investigation matters. However, not all parties and authorities have embraced the use of TAR, perhaps due to litigation’s adversarial nature, or a latent fear that technological tools will somehow miss key documents that a manual document-by-document review would otherwise catch. As the body of cases and research articles grows, however, courts and academics have largely rejected these concerns in favor of the more efficient, less expensive, and, arguably, more accurate document discovery that predictive coding offers. Yet in many jurisdictions, the use of predictive coding in litigation still remains untested.
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