E-Discovery and E-Retention Trends in 2024

With the growth of electronically stored information (ESI) and the use of artificial intelligence (AI), it is more important than ever to stay up-to-date with the latest trends and protocols. As we look ahead to 2024, there are several key trends to watch out for, according to an article by E-Discovery Watch.

Artificial Intelligence (AI) is becoming increasingly prevalent in e-discovery. AI-based tools — privilege reviews, early case analysis, and incoming production analysis — offer support in managing resources, time, and costs. Predictive coding, a machine learning application that uses algorithms to identify relevant documents, is expected to see more use in 2024 to alleviate the workload for collected documents, as reported in an article by Greenberg and Taurig. 

New collaboration tools will improve the manageability of document collection. While collecting emails with attached files is straightforward, links to documents within collaboration tools may pose challenges by pointing to storage platforms and increasing the volume of documents. The new collaboration tools allow the collection of linked documents only, reducing costs.

The use of collaborative platforms introduces preservation challenges, as documents within them are dynamic and can be edited. Changes made after an email is sent but before a litigation hold may lead to spoliation concerns, emphasizing the need for careful preservation practices.

While AI in e-discovery can aid in identifying evidence, real-world AI applications may lead to unreliable or fake evidence. Practitioners must validate and understand these applications, ensuring that they do not unknowingly present misleading or false evidence or contain errors, biases, glitches, or hallucinations.

The growing importance of AI in e-discovery requires attentiveness to ESI protocols. Parties are expected to review and revise these protocols to address emerging challenges, including the use of AI and protocols treating the links to collaborative workspaces. A well-crafted ESI protocol will provide predictability and flexibility and can lead to fewer disputes and early resolutions.