eDiscovery and AI in ADR

Mastering eDiscovery and AI in ADR: A Guide for Legal Practitioners

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Mastering eDiscovery and AI in ADR: A Guide for Legal Practitioners

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eDiscovery and AI in ADR
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Mastering eDiscovery and AI in ADR: A guide for legal practitioners

 
April 08, 2025
 

By Daniel B. Garrie and Bradford K. Newman

The landscape of pre-trial discovery is rapidly evolving as eDiscovery and artificial intelligence (AI) continue to reshape legal practice. As AI technology becomes increasingly integrated into legal frameworks, legal practitioners who are early in their careers must understand how to navigate these new frontiers, particularly in alternative dispute resolution (ADR) settings. This is not an option, but rather, is part of licensed attorney’s duty of competence. For example, Comment 8 to the ABA Model Rule 1.1, “Duty of Competence,” specifically provides: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology….”

Understanding eDiscovery: A necessity for modern legal practice

Electronic discovery, or eDiscovery, is the process of identifying, collecting, and producing electronically stored information (ESI) in litigation and other legal proceedings. The Sedona Conference Glossary: E-Discovery & Digital Information Management (Fifth Edition), 21 Sedona Conf. J. 263 (2020) (last visited: October 15, 2024). ESI encompasses a wide variety of data sources, including emails, social media posts, documents, databases, and more. Given the increasing reliance on digital communication and documentation, eDiscovery has become a crucial element in modern legal practice. Garrie, Newman et al: Uncovering Digital Evidence: A Comprehensive Guide for Legal Professionals in the Digital Era, Springer Nature Switzerland AG (2024), Chapter 6: Digital Forensic Investigations and eDiscovery.

Balancing transparency and efficiency in dispute resolution

While ADR – such as arbitration and mediation – historically involved fewer formal discovery requirements than traditional litigation, the rise of eDiscovery has transformed this process. ADR parties often require the same level of data transparency as in litigation, and eDiscovery plays a pivotal role in facilitating that transparency. For example, in complex cases involving intellectual property or corporate disputes, the discovery of critical documents can make or break a resolution.

In-house counsel

In-House Counsel Pointers For Preserving Atty-Client Privilege

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In-House Counsel Pointers For Preserving Atty-Client Privilege

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In-House Counsel Pointers For Preserving Atty-Client Privilege

 
February 13, 2025
 

By Daniel B. Garrie 

The attorney-client privilege is a cornerstone of legal practice, designed to foster open and honest communication between clients and their attorneys. However, for in-house counsel, navigating the complexities of this privilege can present significant challenges. Unlike external legal advisers, in-house attorneys often operate at the intersection of legal and business functions, complicating their ability to assert privilege over communications. Recent rulings — such as the U.S. District Court for the Western District of Washington’s September 2024 ruling in Garner v. Amazon.com Inc.,[1] and the U.S. District Court for the Northern District of California’s December ruling in Epic Games Inc. v. Apple Inc.[2] — illustrate the challenge and dispute of attaching attorney-client privilege for in-house attorneys. This article explores the intricate landscape of attorney-client privilege as it pertains to inhouse counsel, examining key considerations such as the definition of the client, the distinction between legal and business advice, and the imperative of confidentiality. Further, it provides practical best practices to help in-house attorneys safeguard their communications and effectively assert their privileges in an increasingly scrutinized corporate environment.

The Elements and Considerations of Attorney-Client Privilege for In-House Counsel

Generally, the attorney-client privilege only protects (1) communications made in confidence; (2) between privileged persons, i.e., the attorney, client, or in some cases, an agent; and (3) for the purpose of obtaining or providing legal assistance for the client.

Who is the client?

The first requirement of attorney-client privilege is that a relationship exists in the first place between an attorney and a client. In the context of in-house counsel, the client is the corporation itself, not the individual employees within it. However, because corporations act through people, a critical question arises: Which individuals within the organization can be considered clients for the purposes of applying the attorney-client privilege? Courts typically utilize two primary tests to define the client in this context. Subject-Matter Test This test allows the privilege to apply if “[t]he communications concern[] matters within the scope of the employees’ corporate duties,” and the employees understand the discussions with counsel occurred so “the corporation could obtain legal advice,” as articulated by the U.S. Supreme Court in its 1981 Upjohn Co. v. U.S. decision.[3] It is especially important to note here that the test is focused on the employee’s Daniel Garrie understanding of the discussions. In-house counsel is responsible for making sure employees understand when the lawyer is providing legal advice for the corporation….

Forensic neutrals

Forensic neutrals are reshaping commercial litigation

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Forensic neutrals are reshaping commercial litigation

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Forensic neutrals are reshaping commercial litigation

 
January 31, 2025
 

By Daniel B. Garrie and Hon. Charles Margines (Ret.) 

In the intricate world of commercial litigation, the stakes are high, and the complexities can be overwhelming. As attorneys, we often find ourselves navigating a labyrinth of legal issues, evidentiary challenges, and procedural intricacies. The challenges have expanded beyond traditional disputes to encompass a vast array of complex, data-driven issues such as deciphering intricate digital trails, understanding technological nuances, and ensuring the integrity of electronic evidence. But what if there was a tool that could streamline the process, making it more efficient and effective? Enter the forensic neutral.1 

The Role of Forensic Neutrals 

At its core, a neutral is an auxiliary judicial officer appointed by the court to assist in specific aspects of litigation. While the concept may sound foreign to some, it has been a cornerstone in the American legal system for decades. The neutral’s role is not to replace the judge or the jury but to enhance their comprehension of the issues, especially in cases that demand specialized knowledge or expertise. 

Federal Rules of Civil Procedure 53(a)(1)(A) empowers a judge to appoint a neutral to (1) perform any duties to which the parties consent; (2) “address pretrial and posttrial matters that cannot be effectively and timely addressed by an available district judge or magistrate judge of the district,” even without party consent; (3) conduct trials and make or recommend findings of fact in non-jury matters, if warranted by some “exceptional condition,” even without party consent; (4) perform accountings or difficult damage computations, again, even without party consent. In state court cases, the applicable law may or may not require consent, or an appellate decision may have resolved whether consent is needed.  

Courts obtain help from neutrals for an array of case issues, including when the case (1) involves a complex, technical, or specialized area of the law; (2) requires heightened and extensive oversight during discovery; or (3) calls for fact-intensive non-jury determinations. Neutrals who are qualified to handle data forensics are unique in that they do both technical and legal work. They have the experience and credentials necessary to assist the court and the parties in understanding, managing, and analyzing electronic data pertinent to the case. Forensic neutrals can help parties understand the technical requirements set forth by a protective order, draft protocols, and monitor compliance with a court order. Moreover, they can perform the technical work themselves. This dual capability can save significant time and money and often results in more efficient conflict resolution. While the exact scope of the neutral’s work can vary depending on the needs of the case, the goal remains the same: to ensure efficiency and compliance from both a technical and legal perspective. 

The Importance of Forensic Neutrals in Today’s Large Commercial Disputes.…

 

Deepfakes in Court

Deepfakes In Court Proceedings: How To Safeguard Evidence

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Deepfakes In Court Proceedings: How To Safeguard Evidence

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Deepfakes in Court Proceedings: How To Safeguard Evidence

 
November 18, 2024
 
 

By Daniel B. Garrie and Jennifer Deutsch

Imagine a courtroom where key evidence — a video of the defendant confessing to a crime — is so convincing that the judge and jury have little reason to doubt its authenticity.

The recording plays, showing the defendant detailing the crime in their own voice, with familiar gestures and expressions. The jury is moved, convinced by the video’s clarity and the confidence of what appears to be a genuine confession. A conviction is handed down, seemingly beyond doubt.

Months later, new information surfaces: The video was a deepfake, an AI-crafted fabrication made to resemble the defendant with stunning accuracy. The conviction is overturned, but the damage has been done. The defendant’s life and reputation have suffered irrevocably, public trust in the legal system is shaken, and significant court resources are spent untangling the deception.

This hypothetical is not far-fetched — it’s a near-term risk as deepfake technology advances. The term deepfake — a blend of “deep learning” and “fake” — refers to a sophisticated manipulation of audio, video or images using AI.

By training algorithms on extensive datasets, deepfake technology can create uncannily realistic yet entirely fabricated portrayals, making it increasingly difficult to distinguish fact from fiction.

The pervasive threat of deepfakes has already been shown in other high-stakes environments.

In 2021, cybercriminals deepfaked the voice of an unnamed company’s director, successfully authorizing the fraudulent transfer of $35 million.[1]

In 2022, a manipulated video of Ukrainian President Volodymyr Zelenskyy allegedly surrendering to Russian forces circulated widely online, briefly shaking public trust before it was debunked.[2]

Crafting Effective Privilege Logs for Legal Success

Crafting Effective Privilege Logs for Legal Success

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Crafting Effective Privilege Logs for Legal Success

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Crafting Effective Privilege Logs for Legal Success
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Crafting Effective Privilege Logs for Legal Success

 
November 11, 2024
 

By Daniel B. Garrie

 

The process of creating a privilege log has evolved significantly over the past few decades. As former U.S. Magistrate Judge Andrew J. Peck remarked,

When I got on the bench in 1995, the privilege logs in a typical case [were] two to three pages, maybe 50–100 entries. Now the privilege logs are like little novels, and there may be 10,000 or more entries. That is very expensive and is often useless to the other side in figuring out what is or isn’t privileged.[1]

His observation highlights the critical need for well-crafted, efficient privilege logs that serve the needs of all parties in litigation without becoming burdensome or unclear. This article will outline the federal rules guiding privilege logs, explore the different types of privilege logs, and provide best practices to create comprehensive and manageable logs.

Federal Rules Guiding Privilege Logs

The Federal Rules of Civil Procedure (“FRCP”) do not use the term privilege log or otherwise spell out procedures for logging privileged documents. Instead, FRCP 26(b)(5)(A)(ii) requires parties who withhold documents on the grounds of privilege to provide sufficient detail about those documents so the opposing party can assess the privilege claim. Specifically, the rule states that the withholding party must “describe the nature” of the documents, communications, or tangible things withheld “in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.”

Types of Privilege Logs

The absence of strict procedural guidance leaves much room for interpretation, prompting the emergence of various types of privilege logs tailored to different legal contexts.

A. Traditional Privilege Logs

The traditional privilege log is the most detailed and burdensome form. It requires a line-by-line description of each document, including the author, recipients, date, and a description of the subject matter sufficient to explain the claim of privilege. Traditional logs are often time-consuming and expensive to produce, particularly in large-scale litigation involving thousands of documents. Despite their complexity, they provide the most thorough level of detail, making them common in high-stakes litigation…

Special Masters in Social Media Litigation

Using Special Masters in Social Media Litigation to Streamline Discovery: Navigating the complexities of these cases

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Using Special Masters in Social Media Litigation to Streamline Discovery: Navigating the complexities of these cases

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ALM

 

Using Special Masters in Social Media Litigation to Streamline Discovery: Navigating the complexities of these cases

 

February 21, 2024

 

By Daniel B. Garrie, Esq.

There has been an explosion of litigation in recent years related to the potentially life-threatening effects of social media usage among adolescents. Hundreds of cases have been filed in state and federal courts, many of which have been consolidated into multidistrict litigations or otherwise consolidated within state court departments. One such example in California state court is, in which the court recently overruled Snap’s demurrer on claims that Snap’s conduct in designing and implementing its social media platform, Snapchat, resulted in the foreseeable deaths of plaintiffs’ children, who overdosed on fentanyl.

Litigations involving social media can be complex and highly technical. Such cases often involve collecting and analyzing large amounts of data from social media websites and apps. This can present challenges for the lawyers and judges involved, as they may not be familiar with social media platforms and managing the unique types of data generated and stored on these platforms. Engaging a discovery special master can help streamline discovery in social media litigations to ensure that the right data is collected as efficiently as possible.

Social media repositories present unique issues for the discovery process. For instance, the repositories that hold a user’s social media data are controlled by a third party (e.g., Meta, X, Snap, etc.). Obtaining a user’s data typically requires the user to download their information using the application at issue. However, this download will only capture a snapshot of the user’s data at the time of the download. This means that any subsequent changes to a user’s social media data that occur after the download would not be captured by this snapshot.

To read the full article, go to ALM

The advantages of mediating Computer Fraud and Abuse Act disputes

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The advantages of mediating Computer Fraud and Abuse Act disputes

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The advantages of mediating Computer Fraud and Abuse Act disputes

 

February 6, 2024

 

By Daniel Garrie, Hon. Gail A. Andler

 

The Computer Fraud and Abuse Act of 1986 (“CFAA”), codified as United States Code Title 18 Section 1030, is probably best known as the primary federal law governing cybercrime in the United States today. However, the CFAA also provides for civil remedies, which some companies have seen as an way to recover monetary damages for suffered losses from data breaches or cyberattacks that the government is either unwilling or unable to prosecute due to the explosion of cybercrime in recent years. For CFAA cases pursued as civil matters, mediation can be an effective tool for resolving disputes, saving the parties time and money in a way that gets to the heart of the technical issues.    

What is the CFAA?  

At a high level, the CFAA prohibits unauthorized access of protected computer systems and the distribution, theft, or damage of information from a computer or network. The CFAA also includes provisions prohibiting other computer related offenses such as computer espionage, trafficking in passwords, and transmitting malicious code.  

Notably, the CFAA also allows individuals to bring civil actions for violations of the CFAA. Pursuant to Section 1030(g) of the CFAA, “Any person who suffers damage or loss by reason of a violation of this section may maintain a civil action against the violator to obtain compensatory damages and injunctive relief or other equitable relief.”  The CFAA limits the right of a private individual to bring a civil action only where the violation: (1) modifies or impairs medical examination, diagnosis, treatment or care of a person or persons; (2) causes physical injury to any person; (3) causes a threat to public health or safety; or (4) causes “loss” to one or more persons during any one-year period aggregating at least $5,000 in value. 

This gives entities that have been the victim of cybersecurity breaches a useful tool in situations where law enforcement does not pursue the matter. There are also advantages for the plaintiff as the “preponderance of evidence” standard of civil cases is much lower than the “beyond a reasonable doubt” standard of criminal cases.

To read the full article, go to Daily Journal

Technical E-Discovery Neutrals in Litigation

Harnessing the Power of Technical E-Discovery Neutrals in Litigation

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Harnessing the Power of Technical E-Discovery Neutrals in Litigation

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Technical E-Discovery Neutrals in Litigation

New York Law Journal

 

Harnessing the Power of Technical E-Discovery Neutrals in Litigation

 

February 2, 2024

 

By Daniel Garrie, Leo M. GOrdon

 

E-discovery processes can be complex given the sheer volume and diversity of digital data, combined with the technical intricacies of data management and retrieval. This is where technical e-discovery neutrals come into play, offering their specialized expertise to manage and streamline e-discovery processes.

The digital age has significantly transformed the legal landscape, particularly in the realm of discovery. Electronic discovery (e-discovery) has emerged as a critical part of modern litigation regarding the identification, collection and production of electronically stored information (ESI). However, e-discovery processes can be complex, given the sheer volume and diversity of digital data, combined with the technical intricacies of data management and retrieval. This is where technical e-discovery neutrals come into play, offering their specialized expertise to manage and streamline e-discovery processes, potentially narrowing disputes and saving significant time and cost.

 

Role of Technical E-Discovery Neutrals

Technical e-discovery neutrals are legal professionals with expertise in both the law and technology. They work to facilitate efficient and cost-effective e-discovery processes by advising parties on technical issues, ensuring compliance with relevant legal standards, and arbitrating disputes over ESI. Their involvement can range from consultative roles to more formal appointments by courts, especially in complex litigation where the e-discovery process might be contentious or technically challenging.

 

To read the full article, go to Daily Journal

Roles of E-Discovery and Digital Forensics

Understanding the Distinct Roles of E-Discovery and Digital Forensics

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Understanding the Distinct Roles of E-Discovery and Digital Forensics

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Roles of E-Discovery and Digital Forensics

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Understanding the Distinct Roles of E-Discovery and Digital Forensics

 

December 28th, 2023

 

By Daniel Garrie, Hon. Gail A. Andler

 

E-discovery and digital forensics are two distinct and nuanced concepts that are often conflated in the world of legal technology. While both fields converge in their utilization of digital data and may overlap once litigation is instituted, their applications, methodologies, and implications in legal proceedings significantly differ.

E-Discovery is by its nature employed once litigation (or arbitration, under some rules) has commenced; digital forensics implicates the prelitigation obligation of preservation, as discussed below, and perhaps other aspects of the discipline which may come into play for pre-litigation mediation or other forms of alternative dispute resolution.

Take, for example, the hypothetical situation of a key employee (“Former Employee”) leaving Business A to start a competing business, Business B. As soon as competing business enterprise Business B or Former Employee are put on notice that Business A may dispute some aspect of Former Employee’s actions in leaving Business A or engaging at Business B, Digital Forensics must come into play to identify, preserve and maintain certain electronically stored information of all concerned. Early mediation efforts may take place pre-mediation with the sides, separately or together, utilizing a digital forensics expert to review hard drives or phones to determine whether information has been accessed, downloaded or deleted. In our hypothetical, it is not until either litigation or arbitration permitting discovery commences that eDiscovery may come into play, potentially overlapping with Digital Forensics activities. Following below is a more expansive discussion of each. Understanding the roles and characteristics of these two critical facets of legal practice can aid legal professionals in managing the technical aspects of legal proceedings more efficiently and avoid costly pitfalls. This article provides an overview of the defining features of e-discovery and digital forensics and how they are used in distinct ways in the legal field.

To read the full article, go to JAMS

Electronic Discovery and Professional Sports

Electronic Discovery and Professional Sports

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Electronic Discovery and Professional Sports

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Electronic Discovery and Professional Sports

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There is no “I” in team: electronic discovery and professional sports

July 8, 2022

 

By Daniel Garrie, Gail Andler and Allyson K. Duncan

Interdependence, the mutual reliance of individuals and entities on one another, is a crucial feature of professional sports. As the interconnectedness of a point guard, power forward, and center on a basketball team, the athlete, the agent, the team, and the league are interdependent entities, each with a distinct but related responsibility.

However, this interdependence creates several unique legal issues in the context of professional sports. One such problem is how these interdependent entities must police and preserve each other’s documents and information. This article aims to examine some of the intricacies of these interrelated responsibilities, particularly in the context of the athlete/ agent relationship.

This issue is not academic. On the contrary, the question of who is legally responsible for various documents has become increasingly pertinent in our contemporary information age as a result of (1) the sheer amount of information created and amassed; (2) the expansiveness of rules governing legal discovery and information production; and (3) the demonstrated willingness of courts to enforce information governance and punish, with monetary and other sanctions, the destruction or failure to preserve and produce information, even if such destruction is unintentional. These three factors have heightened the importance of quality governance and preservation of electronically stored information (ESI) in this digital age. See, for example, Waskul v. Washtenaw County. Community. Mental Health, 2021 WL 5049154 (E.D. Mich. Oct. 31, 2021), the U.S, in which the Court warned attorneys appearing in federal courts either to be competent and cooperative in discovery of electronically stored information (ESI) or to partner with someone with ESI expertise.

On a large scale, major professional sports leagues are vast and complex networks that must be cognizant of all the players, such as athletes, teams, owners, and sponsors, and situations that make them a reasonable provider of electronic documentation. Unlike a sports agent who preserves communications with and about a specific client, leagues face countless limitations and responsibilities related to information preservation and production from their member teams and players. As established by the lower courts in National Football League Properties, Inc. v. Superior Court (1998), the League may be responsible for producing information between the League office and any of its affiliated forprofit entities.

To read the full article, go to JAMS