How Your Team Should Tackle Discovery Obligations in the AI Era

Understanding the impact of new technologies on discovery obligations enables businesses to stay competitive, increase efficiency, and control costs. At the same time, evolving technology introduces new risks. It is critical for organizations to adopt best practices to stay prepared and compliant as those changes continue.

Education is essential

Education is the all-important first step. Business leaders need to know which questions to ask current and prospective vendors to demonstrate due diligence and confidently explain their technology strategy to stakeholders. The goal is to work with vendors who improve efficiency while reducing risk.

This is especially critical with eDiscovery providers, where it’s important to understand how AI is used and how sensitive information is handled. A business can be confident that appropriate safeguards are in place only when it understands how the technology functions in practice. Before engaging a new vendor—or renewing an existing contract—make sure you:

• Ask how the vendor uses AI
• Review your contract to consider how AI is incorporated and confirm privacy issues are adequately addressed
• Consider the costs, benefits, and risks of engaging the vendor

Education also goes a long way in the litigation context when working with outside counsel on discovery. Some of the key questions that are important to ask at the outset of your IT staff, outside counsel, and vendor in preparing or responding to discovery include:  

• In what format do we want the other sides’ production. Will it be searchable and can our vendor’s eDiscovery platform process it efficiently? 
• If the other side requests the same format, can we comply with making our production in that format without considerable added cost?  
• What documents do we really want and need from the adversary?
• Should we consider search terms, time period constraints, custodians, or other parameters to limit what we request?

Knowing the answers to these questions at the outset enables sound, economical, and efficient strategy decisions. 

As the case evolves, it may be necessary to change the initial discovery plan. But thinking through the issues at the outset will allow you to adapt. If you serve broad and unfocused requests, you risk receiving a document dump that has little value and may be costly to review. By having familiarity with the options, and an organized plan, you can consider how to work specific terms into your definitions and requests, focusing early on the things you really want to obtain in discovery. Leveraging technology effectively will enable you to limit work for your own employees tasked with gathering information. It could also help reduce legal fees both in producing your own documents and reviewing the opposing side’s documents.

Leverage technology and retain outside counsel 

Once you understand the basics of the technology involved, you can begin to use it to increase efficiencies. In the litigation context, this can mean savings when it comes to using tools such as technology assisted review (TAR) with a trusted (and vetted) vendor. The appropriate use of TAR can go a long way in assisting with analysis of large data sets in a short time or suggesting predictive coding for documents within a data set. However, dealing with privilege issues must be part of that analysis to avoid delays, waiver of privilege, or unexpected legal fees that could result if this issue is not considered from the outset. Be sure to ask your vendor how they will handle the review of privileged and confidential information when using TAR.

When using TAR, it’s best to use a measured, hybrid approach that leverages the technology for things like processing “first cuts” of certain data sets, while incorporating human quality control and/or second pass review and privilege review. While technology is great, we must remain critical of it—asking the right questions, double-checking results, and not assuming it is infallible. Retaining outside counsel who can fully explain the options, benefits, and risks—as well as supervise and manage outside vendors (and assist in-house IT employees)—in any given case is essential and significantly drives the costs, efficiencies, and strategy in any litigation.  

Don’t forget to document

When using TAR to assist in review and production, it is also critical to document your process.  It is increasingly common for adversaries and the court to question your process. You must have a defensible process that you are able to explain and articulate to opposing counsel, your team, and potentially, the court. Make sure you document the steps you take along the way. Failure to do so could have a negative consequence where the efficiencies you’ve gained through using technology-enhanced review could be for naught.  

While the proper and calculated use of technology will assist you in decreasing litigation costs, the improper or careless overuse without a defensible process may do the opposite, requiring motion practice and duplicate efforts. Accordingly, understanding the key components and asking the right questions is the first step, while hiring the right outside counsel and vendors will ensure that the company gains the benefit of technology without greatly increasing its cost and risk.