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 July 29 to Aug. 4. Here’s what’s happening.

Your Client’s Video Game Console Might Just Contain Important ESI

When preserving electronically stored information (ESI) for a case, it’s important to identify all the potential devices that might be storing such data, even if those devices aren’t normally part of your discovery process.

For example, in a recent case from California, the defendants pressed for forensic images of the plaintiffs’ smartphones and their gaming consoles, according to the Sidley blog’s post on J.T. v. City and County of San Francisco.

The magistrate judge didn’t say specifically how that information should be preserved, but she did agree that gaming consoles and platforms — such as Twitch, Xbox Live, Steam, PlayStation Network and others — usually have some type of messaging tools that players can use to communicate with each other.

If those messages are relevant to “specific, predictable and identifiable litigation,” the duty to preserve takes effect. The plaintiffs’ counsel was ordered to ask each plaintiff if they had ever used a gaming console or platform to communicate about the case’s underlying incidents. If so, the plaintiffs need to take steps to preserve any relevant messages.

The takeaway here is that ESI doesn’t just live on a subject’s smartphone or laptop. Your preservation process should include in-depth questioning of your client to identify all the places where their communications and other data might be stored.

ABA: Lawyers Need Reasonable Understanding of Generative AI’s Capabilities

When it comes to generative AI, attorneys don’t need to know exactly how the technology works, but they should have a reasonable understanding of what it can and cannot do. That’s according to a new opinion from the American Bar Association covering ethical best practices for generative AI.

The ABA doesn’t argue against the use of AI. In fact, the opinion argues that, at some point, there may be certain tasks where attorneys need to use generative AI in order to “competently complete” them for clients, Bob Ambrogi writes at LawSites.

But the ABA opinion also warns lawyers that “lawyers may not abdicate their responsibilities by relying solely on a GAI (generative AI) tool to perform tasks that call for the exercise of professional judgment.” Relying on an AI’s output without appropriate review or verification could go against their duty to deliver competent representation to clients.

How much review is appropriate? It depends, the opinion states. If you’re using an AI to summarize a massive document, you probably don’t need to check its work by reading that entire document if you’ve already tested its accuracy in summarizing shorter works. Similarly, a generative AI tool designed specifically for legal work may require less review if the lawyer has used it before.

Read the full opinion here.

Other recent eDiscovery news and headlines:
Episode 150: A Litigator’s Guide to eDiscovery Case Law – Lessons from 150 Episodes of Case of the Week (eDiscovery Assistant)
Yes, AI is Here. No, You’re Not Gone. (Ball in Your Court)
Show Cause Why They Should Not Be Sanctioned After Apparent Fake Case Citations, Says Court: eDiscovery Case Law (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.