2024 EDI Leadership Summit: Key Takeaways

November 2024

Redgrave LLP recently attended the 2024 EDI Leadership Summit in Fort Lauderdale, Florida. While generative artificial intelligence (“GenAI”) content dominated several sessions including cocktail hour conversations, the panels addressed a wide range of other timely topics in eDiscovery. New data sources, including collaboration applications, cross-border discovery, new rules regarding Second Requests, and modern challenges relating to ESI protocols and confidentiality orders were among the many featured topics.

The two-day Summit appropriately began with an update on key 2024 court decisions regarding eDiscovery topics, including proportionality and cost allocation, Chat GPT, discovery of third-party litigation funding, and hyperlink productions. In this article, we briefly discuss some key takeaways from this year’s EDI.

Case Law Update

We took note of two key decisions—In re Insulin Pricing Litig., 2024 WL 2808083 (D.N.J. May 28, 2024) and In re Stubhub Refund Litig., 2024 WL 2305604 (N.D. Cal. May 20, 2024)—which dealt with ESI protocols that require parties to maintain family relationships when producing hyperlinked documents. The issue in these cases was not whether a responsive, non-privileged hyperlinked document was discoverable but, rather, whether the court should uphold or enter an ESI protocol that requires the production of hyperlinked documents in family groups along with their “parent” emails and their children (i.e., traditional attachments). Both courts ultimately agreed with the defendants that complying with such a requirement would be infeasible and/or unduly burdensome because no commercially available tool for maintaining family relationships in the context of hyperlinks existed. Notably, however, the defendants in StubHub had initially agreed to the hyperlink requirement—only later realizing it was undoable—and the court chastised them for negligently agreeing to a provision that was infeasible to comply with in the first place.

The key takeaways? Parties should diligently investigate the feasibility of complying with ESI production requirements before agreeing to them. The common thread underlying each decision—that the defendants lacked the tools to connect in an automated fashion hyperlinked documents with their families—suggests that parties may be required to maintain family relationships in the context of hyperlinks once technology catches up.

GenAI Panels

Panels on GenAI covered its history, emerging use cases in eDiscovery, and the obstacles to adoption, such as cost, confidentiality, and data privacy concerns. In-house panelists shared results from various proofs of concept, demonstrating the value of GenAI in tasks like drafting, first-level document review, privilege logging, and deposition summarization. Several panels noted that GenAI’s recall results in first-level document review often surpassed those achieved through Technology-Assisted Review (TAR) and linear review, with GenAI’s effectiveness validated through established methods used in assessing TAR.

Despite impressive pilot results, several panelists pointed out that GenAI use in large-scale document review remains more costly than TAR. Thus, firms are more likely to consider GenAI for specific tasks, like privilege logging, which do not involve extensive data analysis. Given that GenAI’s role in discovery is new and lacks widespread judicial endorsement, panelists emphasized the importance of protective orders with clear guidelines for using GenAI on confidential client data. Unresolved questions—such as whether AI prompts are privileged or discoverable by opposing parties—pose additional challenges to GenAI’s adoption.

The key takeaways? GenAI has the potential to play a significant role in eDiscovery. While those conducting proof of concept trials and early adopters are exploring diverse applications, its potential uses in document review and privilege logging are promising. Nevertheless, obstacles remain, and until more clarity is provided by judicial rulings, expert bodies, and experience in their use, widespread implementation is unlikely in the near future. Even so, many in-house panelists encouraged law firms and technology providers to embrace the potential of this new technology and advance its use cases while adhering to client policies and maintaining ethical standards on confidentiality, oversight, and review of AI-generated work.

Corporate Privilege Panel

Redgrave LLP Partner, Rana Dawson, moderated a panel regarding corporate privilege, one of the most contentious and increasingly complicated areas of discovery, given the often-blurred lines between business and legal advice and the rise in corporate use of newer data sources and collaboration tools. Panelists drew upon their in-house legal experiences to discuss how corporate employees may destroy privilege and identified best practices for minimizing the risk of waiver. The key takeaways? Train both legal and non-legal employees to: (1) clearly indicate when legal advice is being sought or provided; (2) avoid informal communication channels (e.g., text messages, collaboration platforms, PowerPoints) when discussing privileged subjects; and (3) minimize information sharing with employees who are not essential to the legal discussion.