- Artificial Intelligence (AI) will increasingly be used
for eDiscovery, but results could be a double-edged sword.
The consensus within the eDiscovery community is that AI is a
useful tool that attorneys should not fear. In fact, AI-based
tools, such as predictive coding, privilege reviews, early case
analysis, and incoming production analysis, provide vital support
to manage resourcing, time, and costs requirements. Predictive
coding – an application of machine learning technology that
uses algorithms to identify potentially relevant documents using
keywords, phrases, and metadata – is more likely to be used
in 2024 than in prior years in order to reduce the workload for
collected documents. The concern, however, is that AI has the
potential to actually create more documents for review to the
extent client use of AI generates additional documents. In a world
where client charges are based on data size, use of AI could become
a double-edged sword.
- Changes to collaboration tools will make document
collection more manageable. Emails containing attached
files are straightforward enough for collection purposes, but what
if the email contains links to documents housed within the
collaboration tool? That could vastly increase the volume of
documents required for collection because the email contains a
pointer to a storage platform. Fortunately, some collaboration
tools are improving their system capabilities to allow collection
of only those linked documents rather than the entire storage
platform, which will reduce collection costs. Changes made by
collaborative platforms should continue to improve collection
management.
- Use of collaborative platforms will create preservation
issues. Even if collaborative platform changes help manage
the volume of documents collected, the problem still exists that
those documents are dynamic and able to be edited. And so, changes
to the document could be made prior to a litigation hold but
subsequent to transmitting the email. Further, when pairing a cover
email with a linked document, the paired document may be different
now than it was when the email was sent. This possibility creates
challenges because a copy of the document as it existed when the
email was sent may no longer exist. Thus, spoliation concerns are
real, particularly where the content of a document as it existed
when its corresponding email was sent is a critical fact in the
underlying case.
- Proliferation of AI will result in AI errors, biases,
glitches, and hallucinations. Using AI in eDiscovery may
more readily identify helpful evidence, but AI used out in the real
world may also result in more unreliable (or fake) evidence. AI
technology continues to advance and improve but nothing is
failsafe. And so, practitioners must validate and understand AI
used not only in the eDiscovery space, but also how it is being
used to generate content that may become evidence in a case, and be
mindful to not unwittingly put forward misleading or false evidence
or submissions.
- A growing emphasis on AI's role in eDiscovery will cause practitioners to be more mindful of the agreements they reach with Electronically Stored Information (ESI) protocol. It will be increasingly common for parties to review and revise their ESI protocols in an effort to anticipate new challenges in the eDiscovery space. This may include provisions regarding use of AI and protocols concerning treatment of links to collaborative workspaces. An ESI protocol should lead to fewer eDiscovery disputes and early resolution of any eDiscovery disputes that do arise. The best ESI protocols will provide both predictability and flexibility to account for the realities that discovery is an evolutionary process and circumstances may change as discovery unfolds. Notably, some judges are more rigid than others when it comes to enforcing strict adherence to the ESI protocol and thus practitioners should be prepared to account for the terms agreed to in their ESI protocols.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.