Insights Articles

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 September 2-8. Here’s what’s happening.

Making the argument for discovery requests and objections

When attorneys engage in discovery, it’s critical to seek out documents and information that are important to the case. But there are limits.

At E-Discovery LLC, Michael Berman writes about a federal case from Illinois, Khan v. County of Cook, where a dentist for the county jail claimed that she was fired because of racial bias.

The plaintiff wanted access to records related to her peer review, but the defense refused. They said her request was “overly broad” and “neither relevant or reasonably calculated” to produce admissible evidence. The judge disagreed and faulted the defense for failing to make a reasoned argument: “These sorts of undifferentiated, unexplained, general objections are tantamount to no valid objections at all.”

However, the judge rejected a different request from the plaintiff: She sought documents and communication going back a decade and covering every practitioner who had faced review, including doctors, nurses and other professionals. Production had been “incomplete and deficient,” she argued. The judge found this request was too broad. “Speculation is never a substitute for proof, and merely insisting that there must be more information than has been produced in discovery is not adequate,” he wrote.

Ultimately, requests and objections must be justified by the facts. Berman uses a metaphor comparing discovery to X-rays and MRIs. Like many successful discovery requests, an X-ray is usually narrowly focused but essential to exploring an issue. And it’s usually easier and less expensive to get an X-ray than an MRI, which can reveal more but comes with higher costs. Sometimes an MRI (or a massive discovery request) is really what a situation requires, but there has to be a factual justification for it.

Florida puts a spotlight on generative AI

In Florida, the rules governing lawyers have been amended to include generative AI. It’s one more sign of the technology’s growing importance in the legal field.

The bar had recommended several AI-related amendments to the Rules Regulating the Florida Bar, and the state supreme court recently approved them. The updates will take effect in late October, eDiscovery Today reported, and include the following changes to the comments on the rules, not the rules themselves:

• Under the existing standard, attorneys had to stay current on the benefits and risks of technology. Generative AI is now specifically mentioned.
• The update says that attorneys must be aware that generative AI could affect their responsibility to preserve confidentiality.
• Partners, managers and other supervisors should consider creating safeguards around how generative AI is used in their organizations.
• Generative AI is also listed as a potential area where lawyers might use a nonlawyer to help provide legal services.

Arguably, the existing standard already covers generative AI even if it wasn’t called out by name. And the bar’s board of governors had already issued a nonbinding ethics advisory opinion on it. Were the new amendments necessary?

The retired Hon. Ralph Artigliere discusses that point in a new post on the EDRM Blog. He’s in favor of the updates, saying they emphasize the importance of generative AI and remind attorneys they need to pay close attention to how it’s used. Artigliere thinks the updates do a good job of balancing the need for care while embracing the advantages that AI offers.

Generative AI is important enough that organizations should think about consulting an expert when they implement the technology. An adviser like Array, for example, can help them receive the full benefit of generative AI while avoiding the risks.

Other recent eDiscovery news and headlines:

• Missing Just That One Piece: Why eDiscovery is Like Algebra (ACEDS Blog)
• AI Won’t Make Your Lives Easier: Artificial Intelligence Trends (eDiscovery Today)

Julia Helmer; Director, Client Solutions
With a decade 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.