What a journey it has been this year!
Though the future of eDiscovery is shrouded in uncertainty, several factors suggest that Artificial Intelligence (AI) will play an increasingly important role in the process. One of the most significant is the ever-increasing data volume that organizations produce. Globally generated data is estimated to be more than 120 zettabytes in 2023. This is only set to continue as we move further into the digital age.
2022 has proved that nothing is holding us back. Cases will get ever more complex, and courts are ready to adapt to evolving times. We have witnessed some fascinating cases this year, reflecting the future trends for legal and eDiscovery professionals.
Some of the standout cases are:
The plaintiff, in this case, was an ex-employee of Defendant GoDaddy. The case was about the claims of gender and disability discrimination and the Family Medical Leave Act retaliation against the plaintiff by the Defendant. It was discovered during the eDiscovery that the plaintiff had intentionally permanently deleted Facebook posts. The court found the intent to deprive. This case had numerous ESI, which included emails, social media, recordings, and communicators’ chats. The plaintiff’s attempts to hide the evidence played a key role in the outcome of the case.
This is another nuanced case that emphasizes search term disputes. The plaintiff claimed trademark infringement and unfair competition, where Defendant submitted proposals for addressing two ESI protocol disputes. The defendant had asked that specific language regarding the parties’ search obligations be included in the ESI protocol, including that both parties have an independent obligation to search all files from all employees that could reasonably contain responsive documents to the parties’ document requests. The scope and language of the disclosure were argued during the case and will be of interest to eDiscovery professionals.
Meta registered a partial win in the case, with sanctions granted in part and denied in part. The issue showcases the Defendant’s failure to fulfill obligations regarding the nature of data collection and spoilage of potential evidence. The court made it clear that ESI protocols should be clear and as per the law. No parties get to manipulate the protocols to suit their case. The discovery made in the case was notable for many reasons, making this judgement an interesting read from an eDiscovery perspective.
These cases have raised the bar higher for every eDiscovery professional. It won’t be surprising to find future eDiscovery turning into digital forensics entirely. The above-mentioned cases have forced us to focus on the following:
- Importance of search terms when looking for relevant data
- Use of AI-enabled TAR technology and its protocols
- Potential sanctions for spoliation of evidence
- Proportionality and form of production disputes
- Production of metadata for photos and emails
- ESI protocols
- Discovery of various ESI sources, including chat, source code, audio/video files, and wearables
With this in mind, it’s clear that traditional data processing and review are simply not sustainable in the long term. AI can alleviate some of the burdens by automating various tasks in the eDiscovery process, from data collection and processing to document review and analysis. This can help speed up the process, improve accuracy, and reduce the costs associated with eDiscovery.
In addition, AI can identify patterns and trends in data that would be otherwise hidden, which can be invaluable in complex legal cases. While there are many potential benefits to using AI in eDiscovery, some risks also need to be considered. One of the main concerns is that AI-based systems are only as good as the data they are given. If information is inaccurate or incomplete, then the results are unreliable too.
2022 was a big year for eDiscovery cases, and we learned a lot from them! Being a technology enabler, we have witnessed eDiscovery evolving for the past two decades. Today, it changes more rapidly than ever in terms of data types, communication platforms, and the nature of disputes. The cases are getting more complex, requiring seasoned professionals and advanced technology like multidimensional analytics and TAR to discover the facts. Here are some key takeaways to adopt moving forward…
- Organize your data: This will save you time and money in the long run.
- Know your data: This will help you determine what is relevant and what isn’t.
- Be prepared to review a lot of data: This is a necessary part of the process.
- Be patient: The process can be slow, but it is worth it to get it right.
- Work with a team: eDiscovery is a team effort, so involve others in the process.
By following these tips, you can be sure to have a successful eDiscovery experience in 2023!