Extract from Cassandre Coyer’s article “Gen AI and E-Discovery: If Chatbots Can Write, Can They Be Custodians?”
In the Ferris wheel of e-discovery, new technologies have hopped on and off the pods for decades, starting with email and going all the way to this year’s generative artificial intelligence.
As many other forms of technology have in the past, generative AI will likely warp existing e-discovery molds, forcing professionals to adapt their custodian interviews and hold notice language, and track data back to new sources that will come with their own collection, preservation and production challenges.
But that’s not necessarily where e-discovery experts expect the crux of the risks with generative AI to be.
Are Chatbots the New Custodians?
In the age of ubiquitous collaboration platforms, the definition and importance of custodians started to evolve, with some e-discovery professionals suggesting that the concept of custodian might not be as relevant as it used to be. Focusing on custodians rather than sources of information—whatever they may be—could risk leaving out critical data.
“We’ve had these kinds of what I’ll call non-human custodians, because for years we’ve collected from all sorts of different sources that are a single source. [Microsoft] SharePoint is sometimes considered a custodian,” explained Jeffrey Fowler, chair of O’Melveny’s Electronic Discovery and Document Retention Practice Group.
