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 April 27-May 3. Here’s what’s happening.

On JD Supra, Kelly Twigger of Minerva26 writes about an emerging source of electronically stored information (ESI): the cookies and pixels on websites that are used to track Internet users. This tracking data became a contested topic in In re Meta Pixel Healthcare Litigation, where plaintiffs alleged they were harmed by using Meta Pixel on their healthcare portals because this supposedly allowed Meta to collect private information about their health issues.

While you may expect the plaintiffs to seek ESI about cookie tracking from Meta during the discovery process, Meta also sought cookie tracking data from the plaintiffs’ devices. Meta hoped to disprove the plaintiffs were tracked by Meta, presumably if no cookies or pixels from Meta were found on their web browsers and electronic devices. In a motion to compel production, Meta insisted it needed all cookies from every device and browser the named plaintiffs used to access their healthcare portals.

However, the judge limited discovery to third‑party cookies that actually “collected or shared health information” and ordered Meta to propose objective criteria for identifying the cookies it really needs. As Twigger writes, “even when data is relevant, courts will insist on a tight nexus between the request and the pleaded claims or defenses” and “collaborative sampling and phased discovery often trump all‑or‑nothing demands.” This shows us that parties are more likely to have their requests granted if the discovery sought is discrete and specific to the issues at hand rather than broad and all-encompassing.

In her article, Twigger also offers a practical playbook for litigators, including plaintiff- and defense-side tips for anticipating this form of ESI, finalizing a form of production, and documenting meet-and-confers, as well as other steps.

Other recent eDiscovery news and headlines:

• 'I’m Having Flashbacks': The Evolution of Legal Document Review From Paper to Generative AI (The Legal Intelligencer)
• The eDiscovery Data Collection Survival Guide (Day 1) (EDRM Blog)

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.