Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of November 10-16. Here’s what’s happening.

Speaking of eDiscovery

Recent conferences discussed the past, present, and future of eDiscovery, including case law updates and tech outlook. Speakers during the Electronic Discovery Institute Leadership Summit and Georgetown Law’s Advanced eDiscovery Institute explored topics including what attorneys should consider in crafting eDiscovery plans and the outlook for AI in eDiscovery.

ESI protocols: Writing about the 2024 EDI Leadership Summit, the Redgrave Insights blog noted two 2024 decisions on whether hyperlinked documents needed to be produced in family groups along with “parent” emails and “children” like attachments. In those cases – In re Insulin Pricing Litig., 2024 WL 2808083 (D.N.J. May 28, 2024) and In re Stubhub Refund Litig., 2024 WL 2305604 (N.D. Cal. May 20, 2024) – “[b]oth courts ultimately agreed with the defendants that complying with such a requirement would be infeasible and/or unduly burdensome because no commercially available tool for maintaining family relationships in the context of hyperlinks existed,” the post noted.

In the Stubhub case, the parties had agreed to ESI protocol that required the grouping. The defendants only later learned it was not technically feasible. On Law.com, Benjamin Joiner covered Georgetown Law’s Advanced eDiscovery Institute, including a panel of judges speaking on case law updates. According to the article, “Judge Willie Epps of the Western District of Missouri had a simple request of counsel for both plaintiffs and defendants: ‘Before agreeing what you're going to produce, meet with experts to know what’s possible.’”’

It will be interesting to see how these decisions influence future cases if and when commercially available technology is developed that can handle this type of linking.

The future of eDiscovery: During a panel at the Georgetown conference, panelists expressed what has become a common refrain in the discussion of AI tools in law, that “AI software is better used as jumping-off points than as an autonomous tool at this stage.”

According to the Redgrave blog, a number of panelists speaking at the EDI event about generative AI stated that genAI in large-scale document review is currently more costly than traditional technology-assisted review. Currently, the post noted, “firms are more likely to consider GenAI for specific tasks, like privilege logging, which do not involve extensive data analysis.” However, even if this technology is used as a jumping-off point rather than an autonomous review, it can still be faster than traditional technology assisted review. Case teams should consider their deadlines, risk tolerance and budgets when evaluating available technology that can be applied to their eDiscovery work.

Preparing a Proportionality Challenge

On the ACEDS blog, Ari Kaplan wrote about a recent webinar he moderated on “Negotiating the Scope of E-Discovery: Proportionality and Pre-Trial Preparation in Complex Litigation.” Some of the key takeaways included:

• Come prepared: Before requesting eDiscovery limitations, lawyers should be able to clearly communicate information about the cost and burden of the discovery requests they seek to limit, as well as how they propose to resolve the issue. “When you go into this, you’ve got to have your facts lined up, you need to know why something is so expensive, and have explored ways to make it cheaper; I very rarely run across judges that won’t listen to you when you can do all of those things,” advised Jeff Jacobson of Faegre Drinker.
• Sampling: One of the ways to demonstrate the burden of a particular discovery request is to analyze a subset of data. Kaplan noted in the article that the party seeking to limit a request can show the volume of relevant documents in the subset and argue that further review “would result in diminishing returns.” According to Al Lindsay of Hogan Lovells, speaking during the webinar, “Sampling can be one of the most powerful tools in defending burdensome requests.”
• Manage the human cost: Parties also should keep a mindful eye on the labor involved in eDiscovery. According to Kaplan, one panelist brought attention to the very real possibility of burnout, especially when parties set overly ambitious deadlines.
• Look across borders: Cases involving international parties or discovery subjects across borders include another layer to the complexity of eDiscovery. Attorneys should understand differences in the legal framework, such as data privacy laws and data transfer restrictions, as well as how client expectations may vary across the globe.

Proportionality is not simply about the volume of electronically-stored information. Other considerations, such as personnel and local law, will have an impact on what is considered proportional in any case.

Other recent eDiscovery news and headlines:

• You Too Can Be a Programmer: How Generative AI Can Upskill Any E-Discovery Professional to Write Code (Law.com)
• Improper Search Spoiled Admission of Child Pornography Evidence (Bloomberg Law)
• Legaltech Rundown: DeepL Launches Voice Translator Solution, BigHand Upgrades Intelligence Software, and More (Law.com)
• The Need for Additional Judgeships: Litigants Suffer When Cases Linger (United States Courts)

Julia Helmer; Director, Client Solutions

With 15 years of expertise, Julia excels at optimizing enterprise eDiscovery workflows from start to finish. With a deep understanding of how to seamlessly integrate workflows across various eDiscovery platforms, Julia creates tailored solutions for data identification, legal holds, ESI collections, and productions. By harnessing the power of Technology Assisted Review and Analytics, she delivers efficient, cost-effective results that align with best practices and budgetary constraints. Julia’s exceptional communication and customer service skills have fostered strong, lasting relationships with both clients and Project Management teams, enabling her to effectively problem-solve and drive success across numerous projects.