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 23-March 1. Here’s what’s happening.
Ethics of ESI Collection and Preservation
Electronically stored information lives in many places: phones, laptops, social media sites, ephemeral messaging platforms, and even some unexpected spots, including video game chats. When eDiscovery professionals are collecting ESI in today’s digital age, they should be reminded of some ethical rules, writes Tonya M. Gray, a partner at Hunton.
We’ve written before about the duty to preserve potentially relevant information, including data from social media platforms, once litigation is anticipated. As Tonya writes, even though third parties own and control most social media sites, users can determine and change their content. Your organization’s preservation process should include in-depth questions to identify all the places where communications and other data might be stored, and if hosted by a third party, you may need to notify them to preserve all relevant ESI and advise clients not to delete potentially relevant posts from their accounts.
Ethics also comes into play when searching for ESI on the opposing side in litigation, Tonya writes. Using search engines to find publicly available social media posts is fair game but making contact with users that are the subject of your inquiry through a “friend” request, for example, to gain access to private posts could run afoul of ABA Model Rule 4.2. The rule says, in part, that absent consent, a lawyer shall not communicate with a person represented by another lawyer about the subject of the representation.
Another related reminder in the article: When seeking information about a user’s social media, lawyers (and their subordinates) cannot create a false identity to convince the user to grant access to private posts. Rule 4.1 says a lawyer “shall not knowingly make a false statement of material fact or law to a third person,” and Rule 5.3(c) says a lawyer is responsible for the conduct of another person if they order the conduct and have knowledge of the conduct involved, have managerial authority in the firm, or have direct supervisory authority over the person and knows of the conduct at a time when “consequences can be avoided or mitigated but fails to take reasonable remedial action.”
Upcoming Webinar on AI and eDiscovery
Join me and other experts on March 11 for a live webinar, hosted by Array and Relativity. We’ll cover our predictions for the practical implementation of AI in eDiscovery and explore other ways AI-driven efficiencies, smarter implementation strategies, and shifting client expectations are transforming the legal landscape in 2025. For more information and to register, click here.
See you at Legalweek!
If you’re attending Legalweek later this month in New York City, we invite you to connect with the Array team at Bridges Bar in the Hilton Midtown to discuss the latest in legal tech and the challenges shaping the industry.
Other recent eDiscovery news and headlines:
- The Number of E-Discovery Decisions Have Nearly Doubled Since 2019 (Legaltech News)
- The Cost of Ignoring Mobile Device Discovery (eDiscovery Assistant)
- Li. v. Merck Addresses: Trigger; Spoliation Discovery; and, Document Unitization (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.
