Extract from Elizabeth Marie Gary, Matthew Hamilton, Bansri Mehta Mccarthy, and Scott Milner’s article “Key Themes and Actionable Insights from Recent eDiscovery Litigation”
Recent developments in eDiscovery case law highlight significant trends, including the challenges of discovery protocols in artificial intelligence and antitrust litigation, evolving court approaches to attorney conduct and privilege, and the increasing emphasis on proportionality, good faith, and technical competence in discovery disputes.
Below, we synthesize key takeaways from recent cases and provide actionable insights for stakeholders.
KEY THEMES FROM CASE LAW
AI Litigation Spurs Early ESI and Deposition Planning
In a California federal case, visual artists alleged that the defendant used their works without their consent to train a generative artificial intelligence (AI) model, constituting widespread infringement. The parties could not agree on an electronically stored information (ESI) protocol, protective order, and the number of depositions and so submitted the issues to the court for resolution. The court largely adopted the plaintiffs’ proposed ESI plan and allowed up to 30 depositions, emphasizing the need for robust discovery planning in large-scale, technically complex cases. This ruling highlights the importance of addressing ESI and related issues early on where digital evidence is expected to be voluminous and varied.
