The e-discovery process is evolving rapidly in today’s digital age. As we navigate 2023, we’re witnessing significant trends in the field of e-discovery. These changes are transforming how we handle data and conduct litigation.
Trend 1: Handling Data from Messaging and Collaboration Apps
The first major trend is the struggle to handle data from messaging and collaboration apps. These apps, such as Slack, Microsoft Teams, and WhatsApp, do not fit neatly into existing structures for discovery. Last year, we saw many cases address the handling of data from these apps.
A notable case from 2022 involved Elon Musk’s purchase of Twitter. In this case, the court found that Musk failed to preserve messages from the app Signal. These messages contained crucial financial discussions about the Twitter purchase. This case underscores the importance of understanding how custodians communicate, and how they set their communication tools to retain messages.
Trend 2: Control Over Data Generation and Preservation
The second trend is the importance of control over data generation and preservation. In the Ohio case Drips Holdings, LLC v. Teledrip LLC, the defendant failed to preserve electronically stored information (ESI) on Slack. As a result, the court issued sanctions for the intentional destruction of ESI.
Trend 3: Technology Competency Among Lawyers
The third key trend is the increasing need for lawyers to have technology competency. In the Red Wolf Energy Trading, LLC v. BIA Capital Management, LLC case, a default judgment was issued due to multiple failures to produce Google Workspace and Slack data. The attorneys couldn’t identify the necessary technology or consultants to search and produce this data effectively.
The Importance of Understanding the E-Discovery Process
As these trends unfold, they underscore the importance of understanding the e-discovery process. Lawyers must be familiar with the data, systems, and technologies available for their cases. They must actively engage in understanding how to retrieve, search, review, and produce data from these systems. And they must be able to analyze the data received from their clients to understand if any gaps exist.
Conclusion: The Characteristic Trends of E-Discovery in 2023
In conclusion, the challenges of managing data from messaging apps, controlling data generation and preservation, and ensuring technological competency among lawyers characterize the e-discovery process in 2023. The evolution of e-discovery is an integral part of the legal landscape and understanding these trends is vital for successful litigation.
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