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

Self-Collection Isn’t in Your Self-Interest

Kelly Twigger at eDiscovery Assistant recently wrote about a case from a few years ago that has an important reminder: Rule 26(g) of the Federal Rules of Civil Procedure require attorneys to “actively supervise the identification, collection, and production of electronically stored information (ESI).”

That didn’t happen in EEOC v. M1 5100 Corp. After the defendant produced only 22 documents in response to a Request for Production in an age discrimination lawsuit, the EEOC questioned whether the search was adequate. During a meet and confer, the defense counsel “admitted that they did not know how their client conducted the search for responsive documents.” That was an immediate red flag for the judge, who “seriously considered” the plaintiff’s request to inspect how the ESI was searched, collected, and produced, but stopped short with a warning, giving the defendant a last chance to comply with its discovery search, collection and production obligations.

As Kelly writes, and eDiscovery professionals know, there are many reasons self-collection is problematic, beyond the risk of a Rule 26(g) violation. New cloud-based platforms, ephemeral messaging apps, and AI generated content are among the new sources of ESI that non-attorney custodians may not be familiar with. And without attorney supervision, custodians may not realize what documents may or may not be important to the matter if they unilaterally make the decision as to what data needs to be collected.

Getting eDiscovery experts, like those at Array, as well as outside counsel involved early in the matter can help guide the process to ensure that collections are handled defensibly and completely in order to avoid problems or disputes later in the case.

Deepfakes in eDiscovery

On the Relativity blog, Sam Bock writes about deepfake evidence: “AI-generated data that is fabricated to create “proof” of a lie and is extremely difficult to discern as artificial with the naked eye.” In addition to an increase in identity fraud related to manipulated voice, audio, and video, and new claims of deepfake evidence making their way through the courts, there’s also more multimedia evidence to sift through and verify: Relativity found 40% year-over-year growth in audio files and a 130% growth in video files hosted in RelativityOne.

The article also references a panel discussion at Relativity Fest last year in which experts discussed the best methods to identify and combat deepfake evidence, such as performing multimedia forensics and calling on expert witnesses with proven methods of detecting manipulated digital evidence.

Other recent eDiscovery news and headlines:

• AI Will Soon Transform The E-Discovery Industrial Complex (Law 360, subscription required)
• Conversational-Amplified Prompt Engineering Is Gaining Traction In Generative AI (Forbes)

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.