KT LitSmart

As the amount of electronically stored information (“ESI”) continues to grow at an exponential rate, basic E-Discovery knowledge becomes increasingly essential for litigators and legal professionals alike across a variety of practice areas. And yet, it does not appear that law schools are keeping up with E-Discovery’s ever-growing consequence. While a handful of law schools do offer standalone E-Discovery courses, it is far from the norm. Mere passing references to E-Discovery in higher education are inadequate to prepare future lawyers for the realities of the legal profession in this digital age.

Sometimes, an argument or position may seem so self-evident or apparent that parties proceed on the assumption that it is correct without ever actually litigating the issue. Should a party decide to contest the issue, however, it can be difficult to find authority in support of the proposition. Such was the case in a recent decision involving an ESI protocol issued by the United States District Court for the Southern District of New York in United States ex rel. M. Frank Higgins & Co. v. Dobco, Inc., No. 22-cv-9599, 2023 WL 5302371 (S.D.N.Y. Aug. 17, 2023).  The parties there disagreed as to how searches for ESI should be conducted. The Court, in resolving their dispute, examined the parties' obligations to produce ESI under Federal Rules of Civil Procedure 26 and 34. 

As part of the e-discovery process, we use digital means to identify relevant information for use in a legal proceeding. The proceeding may be a large-scale medical malpractice lawsuit, a patent infringement case, a government investigation, or countless other legal actions. However, the skills and resources used in those types of matters can also be used in other areas.

Sunlight Financial L.L.C. v. Hinkle, et al., 2022 WL 17487686 (S.D.N.Y. Dec. 7, 2022) highlights the importance of negotiating strong stipulation orders that protect your client's interests. In this case, the Stipulated Amended Preliminary Injunction Order was overly broad and failed to carve out information that the defense believed to be the confidential, proprietary, or trade secret information of third parties. As a result, the corporate defendant was required to produce documents for forensic examination that had questionable relevance to the specific allegations of the Plaintiff and exposed the defendant to potential future litigation.

New technologies are being created and utilized every year. The most significant developments lately are the rise of chatbots - software applications that allow for online chat conversation via text or text-to-speech, without any direct contact with a human operator. Currently, the chatbot garnering the most attention is OpenAI’s ChatGPT program. This article will focus on this technology and how it works either for or against the E-Discovery review process.

An MBA professor of mine used to be fond of saying “data drives decisions.” His point was that the more information you could get, the more informed the decision you could make. In the context of document review, daily reports can be a timely and efficient method of communicating that critical information. The first few days, and even weeks, of any document review project are full of questions and uncertainty. Does the mere mention of a term make the documents responsive? How substantive does the document have to be to be considered “hot”? Am I tagging too many documents as “not responsive”? One way to gauge whether a document review is on the right track is by having the people reviewing the documents submit daily reports describing what they are seeing and how they are coding those documents.