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 March 9-16. Here’s what’s happening.
Scoping an eDiscovery Project
ACEDS President Mike Quartararo recently spoke at the University of Florida eDiscovery Conference on properly scoping an eDiscovery project. In summarizing his remarks on the ACEDS blog, he starts with what not to do: After a company is sued, they contact outside counsel. A lawyer asks the client who at the company has relevant documents and then asks that person to send them over to the law firm.
As many of us know from experience, while this interaction was straightforward it’s neither efficient nor effective. For example, as Mike writes, not all relevant documents may get identified (a brief phone call is unlikely to uncover all the sources of relevant electronically stored information), documents and/or metadata could be altered or even destroyed (by asking non-custodians to produce information), and this could lead to motions and sanctions.
The process to avoid these problems is scoping the project and making a collection plan upfront, which an experienced eDiscovery vendor can assist with. Think of it as project management for eDiscovery: You’ll need to define the scope of the project, key stakeholders, deadlines, requirements, constraints, budget, and risk.
Mike breaks down each step in the context of eDiscovery on his blog post. Here are some key takeaways:
- Gain a complete picture of the client’s information systems, and don’t just take answers at face value. Interview the custodians of the data, including IT, and make sure to ask who else may have potentially relevant data.
- Identify each specific source of relevant information and who controls it. (This protects the client against motions to compel and possible sanctions if relevant data isn’t produced because it wasn’t identified in the scoping process.)
- Draft and provide a formal legal hold notice to all data custodians and client leaders and confirm that the client stops any policies that could cause relevant information to be lost.
And always remember to document your processes. This can bolster defensibility and promote better management of risk should something go wrong.
AI and eDiscovery
On the eDiscovery Assistant blog, Kelly Twigger writes about how courts are considering AI-generated content in discovery. She notes 15 decisions since January 2024 have involved Generative AI, according to her database, and that AI training data may soon become a standard eDiscovery request in intellectual property and privacy litigation.
Even though no firm precedent has been established, Kelly writes, AI-generated content isn’t off limits in discovery, meaning if a law firm used AI to generate arguments or summarize documents, opposing counsel conceivably could seek discovery of those outputs. Organizations should consider how their retention policies should be updated to include their AI-generated outputs or training models in case there is a need to produce these sources of ESI in the future.
Other recent eDiscovery news and headlines:
- Tech Fears, Obsolete E-discovery Case Law and AI’s Takeover: A Chat With Legalweek Speaker Xavier Rodriguez (Legaltech News)
- The Blank Page Problem in eDiscovery and How to Solve It (eDiscovery Today)
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.
