New Challenges and Promising Solutions—The Best Days of eDiscovery Are Coming

As we enter 2025, it is noteworthy that several years ago (it was March 2018, to be exact), the two co-keynote speakers at a prominent eDiscovery conference declared that the major challenges of eDiscovery had been solved and that we could all, in effect, move on to other things.  The speakers were likely influenced by the fact that they were retiring from their then in-house and law firm roles, respectively, and that they were in fact moving on to other things.

For the rest of us, however, their prediction that the major challenges of eDiscovery were over has certainly turned out to be premature—indeed, major challenges may never entirely disappear as new technologies and ways of working are rapidly evolving, and with them come new eDiscovery complexities and challenges.

To their credit, the speakers in 2018 were correct that, for the most part, handling the discovery of emails and traditional Microsoft Office documents had become routine by then.  Also, dealing with text messages on mobile devices was relatively straightforward, even if often overlooked.  General guidance regarding the then-legal issues in eDiscovery was well developed in The Sedona Principles and other publications.  And technology-assisted review (aka TAR) was an available tool to meet the challenge of reviewing large document volumes in discovery, although it was still infrequently used.

Nevertheless, new and very significant eDiscovery challenges have arisen, and old challenges have been exacerbated rather than solved.  A development with far-reaching implications has been the migration of information systems to the cloud combined with collaboration platforms that integrate and connect with various applications that were previously stand-alone.  This development has resulted in new work environments that give rise to difficult technical challenges and legal issues for eDiscovery.     

Microsoft Teams, for example, was launched in 2016, but began to be widely used only after 2018, especially during the COVID-19 pandemic, as it not only enhances productivity but also supports remote work.  Teams includes various functionalities, including persistent chat, collaboration channels, videoconferencing, and real-time file collaboration. It integrates with other Microsoft applications such as SharePoint, OneNote, Word, Excel, and PowerPoint.  Similarly, Google Workspace includes several integrated tools, including Google Meet (videoconferencing), Google Chat, and Spaces (organized collaboration, comparable to Teams’ channels).  These tools in Workspace work seamlessly with other Google applications such as Gmail and Google Drive (document sharing, editing, and storage).  Slack has similar functionalities to Teams and Workspace, while integrating with over 2,500 third-party applications.

A common challenge of collaboration platforms is their use of hyperlinks to share documents that reside in integrated applications rather than traditional attachments that store the attached document with the message.  The difficulty is in collecting and producing the hyperlinked document—and particularly the same version of the hyperlinked document—that was referenced in the message.  While app functionalities and software tools are being developed to address this issue, most often the only way to match the correct version of the hyperlinked document with the message is highly time-consuming and expensive manual search and review, making it a virtual impossibility to do in most cases.

Other challenges of collaboration environments include how relevant portions of persistent chat strings can be produced and irrelevant portions withheld.  Artificial intelligence features are also being introduced in collaboration platforms, such as automated generation of transcripts of videoconferences that unless turned off can create additional, voluminous sources of discoverable documents (of questionable accuracy).

Challenges that have been exacerbated over time include the continuing explosion of document volumes, as well as the proliferation of document sources.  While the use of TAR is becoming more common, too often it is not considered, even where it is sorely needed.  Similarly, traditional privilege logging has become enormously burdensome because of increased document volumes.

The good news is that solutions to these challenges and others are emerging, some technical and some legal.  In addition to software tools being developed for hyperlinked documents, for example, Generative AI is proving quite effective in automating aspects of the privilege logging process.  Sedona, too, is expected to publish a Commentary providing guidance on collaboration platform discovery.

Suffice it to say that the best days of eDiscovery are not behind us, but instead are ahead.  That said, it is more apparent than ever that engaging lawyers with a high degree of experience and proficiency in dealing with these issues—including knowing the state of play in eDiscovery-related technology and the law—is a necessity and not an option, especially in high-stakes litigation and governmental investigations.