Insights
eDiscovery
65 articles on ediscovery from the Law & Forensics team.
July 24, 2026
Hyperlinks, Short Messages, and Generative AI: What James v. Cerebras Systems Demands of Your ESI Protocol
In James v. Cerebras Systems Inc., the Northern District of California entered a single stipulated ESI protocol governing cloud-hosted hyperlinked documents, short message data, and generative AI workflows — the first order to combine modern-attachment handling with explicit AI-governance obligations. In-house counsel and litigators operating under legacy ESI protocols should treat this ruling as a checklist-level prompt for immediate review.
July 21, 2026
Old Rules, New Tools: What Schulte v. LinkedIn Means for Defensible AI-Assisted Document Review
In Schulte v. LinkedIn Corp., a Northern District of California magistrate judge became the first federal jurist to squarely address generative AI in document review, holding that existing TAR standards govern — and that no special rules are required. Litigators and in-house counsel must understand what that ruling demands of their AI-review workflows today.
July 13, 2026
Collaborative Artifacts, Concrete Obligations: What Microsoft Purview's Loop and Copilot Pages Indexing Means for eDiscovery
As of July 2026, Microsoft Purview eDiscovery (Premium) reached general availability with full-text indexing and HTML-export support for Microsoft Loop components and Copilot Pages — meaning that collaborative AI-generated artifacts are now fully searchable ESI. In-house counsel and litigators must update litigation hold frameworks, ESI inventories, and production workflows immediately.
June 2, 2026
eDiscovery Meets AI: What Every Litigator and ADR Practitioner Needs to Know Right Now
AI-assisted review has moved from experimental to expected in large-scale litigation, and its role in arbitration and mediation is growing. The practitioners who understand how these tools work — and where they fail — are positioned to win on the merits. Those who do not are taking risks they may not recognize until sanctions are already on the table.
May 28, 2026
Federal Courts Split on Whether Using Public GenAI Tools Waives Privilege — And Issue First AI-Specific Protective Order Mandates
Four federal courts issued sharply diverging rulings in early 2026 on whether using consumer generative AI platforms during litigation destroys attorney-client privilege and work product protection. The emerging framework draws a critical line between consumer-tier AI tools and enterprise platforms with contractual data safeguards — a distinction every litigator and in-house counsel must understand before discovery begins.
May 18, 2026
Expert's AI Prompts Are Discoverable Under Rule 26, Federal Court Rules
A Connecticut federal magistrate judge has ruled that AI prompts used by an expert witness to cull documents for review are discoverable under Rule 26 and cannot be shielded by a parties' discovery-limiting agreement. Litigators and in-house counsel must now reckon with the evidentiary footprint that generative AI leaves behind at every stage of expert preparation.
May 12, 2026
The AI Privilege Fracture: How Diverging 2026 Federal Rulings Created a Circuit-Level Minefield for Generative AI ESI
A cluster of early 2026 federal rulings has fractured the law on whether AI prompts and outputs constitute discoverable ESI, leaving in-house counsel navigating sharply conflicting standards on privilege and work-product protection depending on which court — and which AI platform — is at issue.
April 28, 2026
Copy-Paste Discovery: Court Rules AI Is Not a Substitute for Good Lawyering — And Sanctions Follow
A federal court sanctioned plaintiff's counsel in April 2026 after finding he had copy-pasted AI-generated analysis directly into a meet-and-confer email without independent legal review, signaling that courts will no longer treat "the AI said so" as a substitute for good-faith lawyering.
April 15, 2026
Federal Enforcement Pause on Ephemeral Messaging Is a False Signal: Civil Spoliation Sanctions and State/International Risk Remain Fully Live
The Trump Administration's effective pause on SEC and CFTC off-channel messaging enforcement since January 2025 has created a dangerous compliance illusion. Civil spoliation sanctions, state investigations, and international regulatory actions remain fully live — and in-house counsel who mistake federal quiet for universal permission are building liability on a foundation of sand.
April 2, 2026
Ephemeral and Off-Channel Messaging Hits a Tipping Point: Courts and Regulators Treat Auto-Delete as a Spoliation Choice, Not a Technical Default
A converging line of 2025–2026 rulings and regulatory actions has settled a once-debated question: allowing auto-deletion to run on Signal, WhatsApp, or Google Chat after litigation is reasonably anticipated is now treated as an affirmative choice to destroy evidence. In-house counsel who have not yet named these platforms explicitly in their litigation holds are operating on borrowed time.
April 25, 2025
Mastering eDiscovery and AI in ADR: A Guide for Legal Practitioners
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,…
February 13, 2025
In-House Counsel Pointers For Preserving Atty-Client Privilege
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…
February 11, 2025
AI-Generated Metadata Hallucinations: A New Risk for Attorneys
Generative AI can fabricate not only text but the metadata that lawyers rely on to authenticate it. Here is how to spot AI-induced metadata hallucinations and verify before you offer evidence.
November 18, 2024
Deepfakes In Court Proceedings: How To Safeguard Evidence
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.
November 11, 2024
Crafting Effective Privilege Logs for Legal Success
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,
March 26, 2024
Using Special Masters in Social Media Litigation to Streamline Discovery: Navigating the complexities of these cases
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,…
March 12, 2024
Hyperlinks and Modern Attachments: The New Frontier of E-Discovery
Cloud links are quietly replacing traditional email attachments, breaking the parent-child model and forcing litigators to rethink how they collect, review, and produce electronically stored information.
February 20, 2024
The advantages of mediating Computer Fraud and Abuse Act disputes
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…
February 20, 2024
Harnessing the Power of Technical E-Discovery Neutrals in Litigation
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…
January 17, 2024
Understanding the Distinct Roles of E-Discovery and Digital Forensics
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…
August 28, 2023
Mobile Messaging and E-Discovery
There are two obvious partiesto every text message conversation: you, and therecipient. Under certain circumstances, typically not anticipated at the time of the conversation, there may be other recipients, such as…
August 28, 2023
Electronic Discovery and Professional Sports
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…
August 17, 2023
Selecting and Preparing an Effective Witness for E-Discovery
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August 8, 2023
Mastering Mobile Messaging in E-Discovery: Strategies for the Toughest Challenges
Text, iMessage, and chat data now drive litigation. Here is how litigators preserve, collect, and produce mobile messaging while managing ephemeral data, BYOD, and proportionality.
June 20, 2023
Selecting and Preparing an Effective Rule 30(b)(6) Witness for E-Discovery
A practical guide for litigators on scoping the notice, choosing a knowledgeable corporate designee, and preparing them to testify credibly about ESI systems, preservation, and collection.
October 13, 2022
Lessons For Cybersecurity Officers After Ex-Uber Exec Trial
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July 28, 2022
Mediation in E-Discovery – The Way Forward
The internet, digital communication such as email and texting, and social media have evolved from a fad to a cornerstone of how business gets done and people interact globally. Given the rapid evolution of this…
March 12, 2021
Special Masters: When Does it Make Sense and How Do We Get One?
Over time, disputes have become increasingly more complex. COVID-19 has impacted access to the courts in California and around the nation, while civil caseloads continue to grow and the time to trial grows even…
June 16, 2020
How to Use Discovery Special Masters, Forensic Neutrals and Technical Special Masters
[](/assets/uploads/2020/06/court-scaled.jpg)Disputes are becoming increasingly complex. The average civil litigation in federal courts takes upwards of 24 months to resolve on the merits.2 Thus, the bench and bar are…
April 16, 2020
Confronting The Challenges Of Virtual Mediation
Conducting mediation via videoconference poses significant challenges, including the difficulty of reading people when you are not with them in person. Add to that the technical difficulties that can arise, and…
March 20, 2020
Avoiding Sanctions: Ethical Considerations in e-Discovery
The ABA Model Rules of Professional Liability are an excellent starting point for the responsibilities of an attorney to their client. Since 2012, the ABA Model Rules of Professional Responsibility have been amended…
October 15, 2019
The Benefits of Using Technical Special Masters
As technology becomes more and more pervasive, there are few litigations in which technology does not play some role. The central issue of a case can often require technical knowledge to understand. When attorneys…
October 15, 2019
Neutrals Need to “Speak Tech” to Resolve Disputes Involving Smart Contracts
Blockchain technology is on the rise. Whether in currency, supply chain, real estate, energy or even democracy, blockchains will soon permeate most business and consumer transactions. For every action, however, there…
August 30, 2019
Daniel Wrote the Book
Daniel B. Garrie is consistently described by attorneys familiar with his work as a preeminent expert in several specialties at the intersection of technology and the law. A mediator, arbitrator and court-appointed…
August 30, 2019
Best Practices: Mediating Cyber Insurance Claim Disputes
With cyber threats on the rise, many companies are purchasing cyber insurance policies to help mitigate risk. However, because cyber insurance is a relatively new field, there is not currently a standard-form cyber…
March 26, 2019
Arbitrating Cyber Coverage Disputes
Policyholders buying insurance are generally focused on obtaining sufficient coverage in dollar terms for the insurance risks that they face. They assume that they will receive the protection for which they have…
December 28, 2018
Mediators Need to Become ‘Bilingual’ to Resolve Smart Contracts
Blockchain technology is undoubtedly on the rise. Be it for currency, supply chain, real estate, energy, or even democracy, blockchains will soon permeate most business and consumer transactions. With every action,…
October 10, 2018
Arbitration and Mediation Can Solve Cyber Insurance Disputes
Litigation over ADR clauses in cyber policies is already happening, as policyholders try to elide pre-dispute ADR requirements contained in their cyber liability policies. Since such litigation may itself defeat the…
July 30, 2018
What Is E-Discovery?
With the widespread permeation of continually advancing technologies into our daily lives, it is inevitable that the product of those technologies, i.e., digital information, makes its way into the courtroom. This…
March 15, 2018
White Paper: Authenticating Social Media Evidence
Social media evidence in particular presents unique challenges as to authentication because it can be difficult to attribute statements or actions taken via the Internet to a specific person.
December 28, 2017
Understanding Deleted Files, Unallocated Space, and Their Impact on eDiscovery
As e-discovery has risen into a major point of focus in modern litigation, it is important for lawyers without strong technology backgrounds to familiarize themselves with at least basic computer storage concepts.…
December 1, 2017
Keyword Mediation Helps Expedite eDiscovery
This alternative can benefit both parties, as well as the court, because a mediator can expedite an agreement in a technically efficient manner, while the parties maintain control over the keyword selection process.…
October 1, 2017
Optimizing eDiscovery with Arbitration
With such an abundance of data to preserve, organize, search, collect, and produce, discovery in litigation has become an extremely costly endeavor. However, there are ways to mitigate the challenges of e discovery.…
May 31, 2017
Social Media eDiscovery: How to Request and Respond
Seeking information from social media accounts is becoming commonplace in litigation. Obtaining social media discovery, however, can pose significant challenges, as this information can take many forms, involve…
April 27, 2017
Using Discovery Special Masters, Technical Special Masters, and Forensic Neutrals
[](/assets/uploads/2020/06/investigations.jpg)The rise of technical issues in litigation is steadily increasing the time and cost of resolving lawsuits. The average civil litigation in federal court takes upwards of…
March 22, 2017
Discovery Obligations Apply to Plaintiffs Too
In Matthew Enterprises v. Chrsyler, No. 13-CV-04236-BLF, 2016 WL 2957133 (N.D. Cal. May 23, 2016), Judge Paul Grewal begins his opinion with a concise and practical overview of Federal Rule of Civil Procedure 37(e):
January 11, 2017
The Neutral Corner: Recapturing the Benefits of Predictive Coding by Using an eDiscovery Special Master
Following a New York federal court’s approval of predictive coding in the Rio Tinto case, attorneys are increasingly using predictive coding to expedite discovery when faced with large quantities of documents.
December 23, 2016
Mediating eDiscovery Disputes Can Save Time And Money
Each year the cost of litigation increases. The primary driver of these cost increases is the discovery phase of litigation and the explosion of e-discovery in recent years. The cause of this explosion is clearly…
October 10, 2016
The Neutral Corner: How to Effectively Use a Technical E-Discovery Neutral
In the past two years, 90% of the world’s data has been created, coming from a wide variety of sources. From automobile black boxes, cloud storage, to wearable fitness trackers, data is being collected and processed…
October 1, 2016
Legally Correct But Technologically Off the Mark
[](/assets/uploads/2020/07/tech-scaled.jpg)Today’s judges face numerous challenges in determining the truth of the matter at hand, but none is more challenging than ruling on issues that pivot on digital evidence.…
January 4, 2016
2016 – The Year of Cloud-Based E-Discovery?
The year 2015 has come to an end, and cloud-based computing has entered the mainstream. One marketplace that is likely to see cloud-based computing become more fully enmeshed is the e-discovery marketplace.
September 2, 2014
eDiscovery and Class Actions: Limiting Discovery Disputes with Special Masters
[](/assets/uploads/2020/07/special-master-scaled.jpg)Class actions are often among the most explosive, costly, and challenging lawsuits faced by lawyers, courts, and litigants. This is certainly true when it comes to…
June 14, 2014
A Guide for the Legal Status of Software
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October 1, 2013
Social Networks and Electronic Discovery
Consider the following hypothetical: An employee working in a pharmaceutical company as a drug sales representative goes on maternity leave, and a new manager takes over. The new manager sexually harasses the…
June 25, 2013
Unchaining E-Discovery in the Patent Courts
[](/assets/uploads/2020/06/courthouse-scaled.jpg)This Article analyzes the Federal Circuit’s Model Order Regarding E-Discovery in Patent Cases (the “Model Order”). The Article briefly describes the purpose behind the…
June 5, 2013
We Need Mediation In E-Discovery
As a practicing attorney, I have heard the word “mediation” cautiously whispered in the courthouse hallways. Attorneys and clients alike are skeptical and resistant to entertain the thought of trying to settle any…
June 27, 2012
The E-Discovery Dance For Patents: Changing The Tune
The authors conclude that, while it is beyond refute that the model order is a step in the right direction in the courts’ efforts to control and manage e-discovery, the model order is only a first step. In this…
June 24, 2012
An Argument for Uniform E-Discovery Practice in Cross-Border Civil Litigation
[](/assets/uploads/2020/06/ediscovery-scaled.jpg)THIS ARTICLE ADDRESSES ELECTRONIC EVIDENCE AND DISCOVERY (“e-discovery”) and its associated electronically-stored information (“ESI”) in complex cross-border…
April 22, 2012
Effective Keyword Selection Requires a Mastery of Storage Technology and the Law
[](/assets/uploads/2020/06/words-scaled.jpg)Selecting keywords for searching large volumes of electronically stored information (“ESI”) is an unavoidable, but necessary step in the process of electronic discovery The…
April 17, 2012
eDiscovery in New Zealand Under the New Amended Rules
Electronic data, be it in a permanent or ephemeral state, can be stored in a multitude of devices (home computer, server, tape, smart phone, iPhone, iPad, or laptop) and paper is stored in a single place with a…
June 19, 2011
E-Discovery Mediation & The Art of Keyword Search
[](/assets/uploads/2020/06/mediator-scaled.jpg)Identifying keywords when combing through large volumes of electronically stored information (“ESI”) is a necessary requirement of electronic discovery. Finding ways to…
February 24, 2010
E-Discovery in Criminal Cases: A Need for Specific Rules
[](/assets/uploads/2020/06/jury-scaled.jpg)Criminal defense lawyers are as obligated as their civil law brethren to be conversant with electronic discovery and its various attendant forms of electronically stored…
January 1, 2010
“Criminal Cases Gone Paperless”: Hanging With the Wrong Crowd
[](/assets/uploads/2020/06/court-house-scaled.jpg)Long gone or fading fast are the days when only bookmakers, ponzi schemers, predatory mortgage brokers, and insider traders, just to name a few, relied on paperwork…
March 1, 2009
Digital Issues in Mergers & Acquisitions, E-Discovery, & Information Technology Systems
One of the persistent puzzles surrounding mergers and acquisitions (M&A) activity is its propensity for failure. In theory, a merger or acquisition adds value in multiple ways: by either creating economies of scale…
June 14, 2006
Electronic Discovery and the Challenge Posed by the Sarbanes-Oxley Act
[](/assets/uploads/2020/06/oxlay-scaled.jpg)While the Sarbanes-Oxley Act was intended to protect and increase publicly held corporations’ accountability, lurking in the background are judicial inequities resulting…
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