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 9-15. Here’s what’s happening.
Looking Back and Ahead at eDiscovery Case Law
The recently released 2024 Case Law Report by Kelly Twigger at eDiscovery Assistant not only offers some interesting facts and statistics about the last year in eDiscovery law but also reveals some trends to watch this year.
For starters, while the number of eDiscovery decisions in the U.S. District Court system remained relatively flat at 5,091 in 2024 compared to 5,614 the year before and 5,171 in 2022, the number of civil cases filed in 2024 increased by 22%, meaning we should expect to see more eDiscovery decisions as those cases progress through discovery in the coming months.
As for the top eDiscovery issues ruled on in 2024, failure to produce led the way with 3,109 instances, followed by proportionality (1,844), sanctions (1,456), third-party subpoena (1,422), and cost recovery (922).
Proportionality, Kelly writes, is often the underlying issue in eDiscovery disputes involving modern attachments or hyperlinked files. She offers a recap of several matters in which courts expect that legal teams proactively address the storage, preservation, and collection of hyperlinked documents, whether in Google Drive, Microsoft 365, or elsewhere, though courts have also ruled in favor of parties who can provide evidence of excessive cost or burden to produce hyperlinked files.
Failure to preserve and mobile device discovery were in the middle of the pack of the top eDiscovery issues of 2024, but these are trending issues as well. Kelly notes that courts are rejecting excuses about automatic deletion settings for text messages or ephemeral messaging platforms like WhatsApp.
2025 eDiscovery Predictions
Legaltech News solicited eDiscovery attorneys and professionals for their industry predictions, which included a reminder about the need for continued diligence regarding the preservation of off-channel communications like text or Slack messages. But Ian Schuler, Counsel in the E-Discovery & Information Management Group at Crowell & Moring, says we may start to see more requests related to “the preservation and production of information and data related to internal AI assistants. Responses provided by an internal AI Assistant may disclose confidential and/or privileged information to a large number of employees, jeopardizing the protection of that information.”
Other recent eDiscovery news and headlines:
- Portions of Litigation Hold Notices Not Privileged, Court Rules: eDiscovery Case Law (eDiscovery Today)
- Another Approach to Drafting and Discovery of Litigation Hold Notices (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.
