10 panelists (3 wearing sequins)
10 opinions on the biggest development in e-discovery
1 David Horrigan to moderate
4 judges to weigh in
and 1 winning argument.
The 2024 “e-Discovery State of the Union” was certainly one for the books.
This annual Relativity Fest tradition offers the unique opportunity to hear from prominent journalists, lawyers, technologists, and association leaders on the latest issues in the world of e-discovery and related legal fields, in the format of a friendly debate.
Last month, we again asked: “What’s the biggest development in e-discovery?” Let’s take a look at the opinions shared by this year’s panel.
The Panelists:
- Bob Ambrogi, Esq., Editor, LawSites, and Attorney at Law
- Ryan O’Leary, Esq., Research Director, Privacy and Legal Technology, IDC
- Joe Patrice, Esq., Editor, Above the Law
- Stephanie Wilkins, Esq., Editor-in-Chief, Legaltech News, ALM
- Legal Technology Associations
- David Cohen, Esq., Partner, Reed Smith, and Chair, Project Trustees, EDRM
- Maribel Rivera, Vice President, Association of Certified E-Discovery Specialists (ACEDS)
- Joy Heath Rush, CEO, International Legal Technology Association (ILTA)
- Legal Technology Practitioners
- Stephanie Clerkin, Director of Litigation Support, Korein Tillery
- Scott Milner, Esq., Partner and Global Leader, eData, Morgan, Lewis & Bockius
- Amie Taal, Founder, Strategem Tech Solutions, Ltd.
The Adjudicators (Past State of the Union Participants):
- Honorable James Francis IV, Neutral, JAMS, and U.S. Magistrate Judge (Ret.)
- Honorable Andrew Peck, Senior Counsel, DLA Piper, and U.S. Magistrate Judge (Ret.)
- Meribeth Banaschik, Esq., Partner and EMEIA Innovation Leader, EY
- Greg Buckles, Founder, Analyst, and Consultant, eDJ Group
The practitioners kicked us off:
“A cornucopia of e-discovery bad behavior by the defense bar.”
According to Stephanie Clerkin, director of litigation support at Korein Tillery, the weaponization by the defense bar has to be the “biggest thing” in e-discovery right now. And there’s a Thanksgiving table full of it: improper and untimely objections to discovery requests, refusal to produce responsive documents, delays. Stephanie voiced many frustrations, while sparing us nine more pages of notes.
But, of course, the defense didn’t want to hear it.
“It has to be the weaponization of ESI protocols against the defense bar.”
Scott Milner, partner and global leader of eData at Morgan, Lewis & Bockius, pointed a finger right back at Stephanie. He highlighted Taylor Swift’s infamous spoilation issues, reminding the room that ESI protocols are optional. Scott urged listeners to consider: Are ESI protocols absolutely necessary in each of your cases? Do we need to get into all the details? What issues do they cause? What do ESI protocols mean today?
Scott boiled it down for Fest attendees: “I’m not dissuading or saying that we don’t have to have transparency in discussion; I’m saying let’s focus that discussion on key topics.”
Enough plaintiff v. defendant. What about international practices?
“DORA.”
Contrary to some speculations from the other panelists, the founder of Strategem Tech Solutions, Ltd. and international practitioner, Amie Taal, was not referencing the explorer with a backpack and a map. The Digital Operational Resilience Act (DORA) is a pending regulation in the EU that will be one of the first of its kind to combine the requirement for both technology AND information.
While DORA’s fine print seemed to go over some heads (even Judge Peck admitted he recognized its importance but didn’t quite understand it), Amie was making a bigger argument. The introduction of an act like DORA will certainly make waves in more than just the EU. No matter where you are, you likely share the same concerns and interests around using these technologies.
As Amie reminded the room, “You are part of this, and you have responsibilities.”
We’ve heard from the practitioners, so how about the associations?
Both Maribel Rivera, vice president of the Association of Certified E-Discovery Specialists (ACEDS), and David Cohen, a partner at Reed Smith and chair of project trustees at EDRM, cast their votes for the big kahuna of developments in 2024: generative AI.
“First pass review will be significantly impacted by generative AI.”
Maribel called out generative AI’s specific application in document review, noting that she’s already heard conversations amongst law firms and legal service providers who are interested in investing in these tools. They frequently ask: “How can we upskill our lawyers so they’re more consultative?”
With the alleviation on some of the most resource-intensive steps in first-pass review, Maribel anticipates opportunities to enlist subject matter experts (SME) to look at specific documents in specific fields and to allow lawyers to provide more expertise, sooner.
“Document review is just the tip of the iceberg!”
David Cohen offered some perspective on the breadth of use cases. He first painted generative AI’s history: how it came crashing into our world less than two years ago in 2022; how, in 2023, ChatGPT became the fastest growing consumer software app in history; and how now, in 2024, we are just beginning to effectively take LLM-powered generative AI and turn it toward practical uses.
While David agreed with Maribel that generative AI is revolutionary for review, he added that its capabilities go far beyond first-pass review. It can also be used to—and please excuse this laundry list—identify sources, filter data, find key documents sooner, help privilege analysis, identify key facts, prepare issue memos, query entire document databases, improve deposition prep, and so much more.
David expressed the utmost confidence in this tool.
“It’s clear that the e-discovery advances from generative AI are hands-down the biggest developments in e-discovery in 2024, and probably, in the whole history of e-discovery.”
Can anything top AI?
“Everyone’s trying to figure out how to do AI, but if you don’t have a handle on your data, you’re going to have a really difficult time.”
Joy Heath Rush, CEO of the International Legal Technology Association (ILTA), took a road less traveled by looping information governance into the conversation. Joy believes that you can’t talk about AI without talking about IG. In any AI project, you need to make sure that your data is the right data. That there’s good data hygiene. That you understand how the data passes through your organization and what the dispositive source of that data is.
She ended by questioning how we can get IG from the department of “no” to the department of “how.”
And now a word from our media:
“There’s an epidemic sweeping across the legal population: the stupidity of lawyers.”
You heard that right. Attorney at Law and Editor of LawSites Bob Ambrogi believes the most notable development in e-discovery this year has been lawyer stupidity—an epidemic wherein ChatGPT is the infector.
He highlighted the misuse of generative AI in Mata v. Avianca, Inc., where ChatGPT was used to cite fake sources.
“It was covered in The New York Times, the Washington Post, the legal media, the legal tech media—you would think that would be the end of it, but no. It’s happened over and over and over again.”
This case is an infamous example of what’s unfortunately become a common theme: blind reliance on technology. Bob rounded out his argument by reminding lawyers of their obligation to legal ethics, pleading with them to get up to speed on this technology.
Here’s a win, though:
“Senior lawyers are now logging in.”
Joe Patrice, editor at Above the Law, cut right to the chase. He acknowledged that yes, AI can do this and that. Put that aside. Joe argued that the substance of AI pales compared to its power as a user experience. He used the example of a study done on senior lawyers who had had access to various technologies for decades, but had never logged in.
These “lawyers of a certain vintage,” as David Horrigan called them, are now interfacing directly with documents because they can just ask GPT-style questions and get nice, concise answers. The platform has been doing this forever, but they’re finally tapping in because of the user experience offered by AI-powered technology.
In short: more accessibility for lawyers = more tech competency and ownership.
What’s at the heart of the matter?
“Trust.”
Ryan O’Leary, research director of privacy and legal technology at IDC, took us in yet another direction. One which pulled on the heartstrings of e-discovery practitioners everywhere.
Ryan posed that when it comes to AI, it’s going to be hard to regulate from a federal government perspective—especially when we’re creating and storing more than 5 zetabytes of data per year. We have to trust humanity to do the right thing.
“If you’re not a jerk to each other, this wouldn’t be an issue,” Ryan burned the litigators and their ESI protocol argument. He asserted that since there will be no data privacy enforcement for the foreseeable future, it’ll be up to you, the e-discovery practitioners, to safeguard and protect the rights of individuals.
And a plot twist at the very end …
“These prompts are now going to be discoverable.”
Stephanie Wilkins, editor-in-chief at Legaltech News, ALM (though she’s since joined LegalTechnology Hub as their new director of content), closed out the panel with a curveball: the biggest development is that generative AI is also becoming evidence.
Attorneys are diving into AI with reckless abandon because it’s “sexy and it’s cool.” Stephanie expressed concerns toward those who don’t consider that these prompts may be examined by somebody else. And if they are deemed discoverable, it may also become a privilege issue.
“The use of the tools itself is now becoming the discoverable evidence.”
What a plot twist!
The Verdict
Finally, after all ten panelists shared their opinions, all that was left to do was vote. Our four adjudicators gave their reasoning.
First, Greg Buckles, founder, analyst, and consultant with the eDJ Group, sided with Stephanie Wilkins and her outlook on generative AI as evidence. He said he’s already seen examples of this in the wild.
Meribeth Banaschik, Esq., partner and EMEIA innovation leader at EY, agreed with our other Stephanie (Stephanie Clerkin) and her frustrations towards the defense bar. She simplified her why down to this: “We need more peace in our world.”
Honorable James Francis IV, Neutral, JAMS, and U.S. Magistrate Judge (Ret.) chose a winner from each category:
- Of the practitioners, he felt he had to decide which was the “least depressing,” and ultimately chose Amie Taal on the grounds that “bad behavior by attorneys is old news.”
- Of the associations, Judge Francis found it hard to get away from the big story being generative AI. He agreed with David Cohen, who had identified that AI is not just related to one certain thing: “AI is going to be all over the place.”
- Of the media, Judge Francis liked Bob Ambrogi’s reminder of ethical responsibilities.
Honorable Andrew Peck, senior counsel at DLA Piper and U.S. Magistrate Judge (Ret.), also chose a winner from each category:
- Of the practitioners, Judge Peck gave a tie to the two sides of the ESI argument.
- Of the associations, he chose David’s generative AI argument. “It’s sort of a … ‘duh.’ It’s every other word at this conference.”
- And finally, of the media: “I hate to vote for ‘lawyer stupidity,’ but yeah …” and with that, Peck cast his vote to Ambrogi.
While the “biggest thing in e-discovery” might still be up for debate, the arguments from these ten panelists provide a great insight into the current state of e-discovery: its challenges and successes, its gradual changes and big fat pivots. Whether you’re a litigator, association, media representative, or judge, we hope you take something from these industry leaders.
Moderator David Horrigan closed out the session by informing the panelists that the prize money would be donated in all of the participants names—a civil conclusion to a friendly debate.
Celia O’Brien is a member of the marketing team at Relativity where she serves as a copywriter.
