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 3-9. Here’s what’s happening.
Case Highlights Challenges of Document Collection
According to a social media post and press release, a jury in Texas has found that an eDiscovery provider violated Texas Penal Code provisions regarding “harmful access of a computer.” A Facebook post from law firm Miller Copeland LLP and press release from public relations firm Androvett, summarizes that the jury in Tarrant County also awarded $50,000 in damages to plaintiff Angelyn Olson, who was represented by Miller Copeland. Neither the press release nor the social media post linked to the verdict form or other documents in the case.
The press release stated the provider was given access to Olson’s email for search according to a limited number of search terms. Instead, the company was accused of downloading a decade worth of Olson’s emails and later destroying them so that the chain of custody could not be tracked.
An article from Law.com around the time the case was filed in 2022 indicates that there may have been a dispute about whether to apply search terms at the time of collection of the emails or later, after they were processed and indexed. The article noted that the case highlights the challenges of balancing sufficient discovery against over-collection.
Drawing insight from eDiscovery attorney Jonathan Redgrave, the article noted, “To be sure, collections isn’t only challenging for e-discovery software. Insufficiently planned protocols or miscommunication can also lead forensic analysts to download too much data to avoid missing relevant information, said Jonathan Redgrave, managing partner of e-discovery and information governance boutique Redgrave.”
It is important for attorneys to include eDiscovery providers in the conversation at an early stage to understand the logistics and capabilities of document review solutions. Further, counsel on both sides need to clearly articulate the agreed limitations to outside vendors. An eDiscovery provider, in turn, can be a valuable resource for efficient and professional discovery as long as they clearly understand the scope of the project.
Judicial Committee to Propose AI Evidence Rules
On November 8, the Advisory Committee on Evidence Rules of the United States Judicial Conference agreed to move forward with potential rules governing the introduction of AI-generated evidence.
According to the agenda released in advance of the committee meeting, “the problems are two: 1) whether changes to the authenticity rules are necessary to deal with ‘deepfakes’; and 2) whether a change is needed to Article 7 [of the Federal Rules of Evidence] to give courts authority to regulate evidence that is the product of machine learning when no expert is proffered to testify.” Following the committee meeting, the committee decided on further action on both questions, but the second is the greater priority.
According to a report from Bloomberg Law, the committee agreed to draft a rule requiring similar reliability requirements for AI output as currently required for human experts. Some members of the committee were skeptical that new rulemaking is necessary for deepfakes, but the committee decided to work on a further proposal on the subject.
The agenda also attached a report from Professor Daniel Capra of Fordham University Law School, the committee’s reporter, including possible language for a new rule, 707:
Where the output of a process or system would be subject to Rule 702 if testified to by a human witness, the court must find that the output satisfies the requirements of Rule 702 (a)-(d). This rule does not apply to the output of basic scientific instruments or routinely relied upon commercial software.
The report also includes possible amendments to current Rule 901 (Authenticating or Identifying Evidence) requiring descriptions of the training data in authentication and governing challenges to evidence on the ground that it is altered or fabricated by AI.
Bloomberg Law reported that Capra stated he will work on proposals according to the committee’s direction in advance of its next meeting in May 2024.
As the landscape of eDiscovery, AI and evidence evolves, there will be new types of evidence, specifically evidence that is not created by a human being, to validate and present. While committee members recognized that the rulemaking process can take years, litigators should be prepared to respond to inquiries about training data and prompt generation leading to the creation of evidence by an AI system.
Other recent eDiscovery news and headlines:
- How Gen AI Is Changing Legal Work for In-House Counsel (Law.com)
- Robert Keeling of Redgrave sits down with Kaylee & Mary (EDRM’s Illumination Zone Podcast)
- Litigators Must Do Court-by-Court Homework as AI Rules Flourish (Bloomberg Law)
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.
