January is a time to set goals and ponder what the new year will bring. It is also a time to think about what happened last year. In the world of litigation, it is important for lawyers and eDiscovery professionals to take note of key decisions and trends.

The overarching theme in 2023 was clear: Courts expect parties to be more proactive, thorough, and intentional. Doing so has proven mutually beneficial as it helps avoid sanctions, can cut litigation costs, leads to better case management, and maintains competence on new technologies that surface.

Here are three major trends stemming from this theme:

There is a continued focus on the importance of ESI protocol language. 

This should come as no surprise. Over recent years, courts have emphasized that protocol language will govern how a court decides discovery disputes when gaps arise. In 2023, more judges talked about the need to build flexibility into these protocols to avoid undesirable outcomes. Failure to do so can result in delays, sanctions, and low tolerance for later revisions. However, it is important to note that some have deviated from the strict interpretation trend. This may cause a more noticeable issue split next year.

Courts and parties are still parsing the role of emerging technologies in litigation and finding ways to navigate the challenges these tools inherently bring. 

As legal professionals delve into tools using cutting-edge technology like generative AI, courts face more pressure to help set boundaries. This sentiment also applies to tools like technology-assisted review (TAR) that have been in practice for a while.

Litigators must remember longstanding basic principles. 

Courts are not entertaining situations where parties and their litigators could have taken simple steps to avoid an issue from surfacing. They are sending a firm message to avoid neglecting the basics. Parties need to be prepared and proactive. In a time where more complex discovery issues emerge, it is crucial to limit the risk of lower priority avoidable disputes.
 

Following is a discussion of five key 2023 cases illustrating these trends.

In re StubHub Refund Litigation, 2023 WL 3092972 (N.D. Cal. Apr. 25, 2023)

The parties agreed to produce hyperlinked documents in their ESI protocol. Defendant tried but was unable to comply because many documents were lost due to the storage drive’s limitations. Plaintiffs filed a motion to compel, which was granted. The court ordered Defendant to produce the documents or to demonstrate impossibility. The judge emphasized that ESI protocols were crucial to expedite discovery and parties should not enter into agreements they cannot uphold. Also, not turning over said documents could result in sanctions.

The StubHub case exemplifies the trend of courts closely following party agreements. A major takeaway is litigators need to think through what they are agreeing to before creating an ESI protocol. Anticipating collection hurdles will provide insight into where protocol flexibility and litigation holds are needed. Failure to preserve evidence subject to protocols is more often resulting in sanctions, which is why judges are stressing the importance of building in caveats.

Garner v. Amazon, 2023 WL 3568055 (W.D. Wash. May 19, 2023)

A key discovery issue was whether changes to a clearly defined ESI protocol should be allowed. Plaintiff filed a motion to compel compliance with prior discovery orders, which the court granted. In their ESI protocol, the parties agreed to use search terms to cull datasets. There was a prior dispute regarding the nature of the search terms and custodians, which the court stepped into resolve in defendant’s favor. Defendant used the approved search terms which yielded around two million documents. Defendant then notified plaintiff that it would additionally use TAR before producing any documents. Plaintiff objected and filed the aforementioned motion, claiming it was too late to alter the protocol and that doing so could potentially eliminate responsive documents. Defendant argued that TAR was necessary to further cull the large pool of documents and went forward with using the tool despite Plaintiff's objection. The court sided with Defendant and denied the motion.

The takeaways are two-fold. First, this highlights the continuous struggle of trusting technology. While many strides have been made, doubt remains. The court sent a message that parties need to get on board with using tools that can significantly cut time and costs. The judge firmly noted that using TAR would significantly narrow the document pool, the producing party is in the best position to determine what will yield optimal production, and it is crucial to be transparent when using TAR.

Second, this case raised questions about the role of ESI protocols as the court allowed for deviation from prior agreements and orders on how to conduct discovery. Legal analysts have said this case questions whether there is an actual need for ESI protocols and highlights the need to include language that allows for changes. What seems to be coming to light is that while many agree that protocols can be beneficial, they need to be done right to decrease discovery disputes – which is the intended purpose in the first place. Things change during the course of litigation and parties often do not know what they are up against. As such, it will be interesting to see if more courts next year continue to harp on the need to build in flexibility into protocols – or wholly deviate from the strict interpretation mindset.

Mata v. Avianca, Inc., 22-cv-1461 (PKC) (S.D.N.Y. Jun. 22, 2023)

A central issue here was whether sanctions were warranted against an attorney that used ChatGPT to help draft a brief. Defendant filed a motion to dismiss. In the response opposing dismissal, Plaintiff’s counsel used ChatGPT as a research aid and the tool convincingly cited cases that did not in fact exist. Defendant’s counsel discovered the false citations and brought the issue to the court. In response Plaintiff’s counsel used ChatGPT again to verify the accuracy of the decisions and the tool ended up creating facts and attributing the existence of the cases to legal research search engines.

Defendant filed a motion for sanctions, and Plaintiff’s counsel responded that this was his first time using ChatGPT as a supplement to legal research and he was unaware that the tool could create false information. The court granted the motion and ordered a $5,000 fine and a directive to notify each judge who had been identified in the fake opinions.

While this did not take place at the eDiscovery stage, the judge’s ruling sends an important message that litigators need to carry with them throughout the entirety of a case. Generative AI was the hottest topic this year and will undoubtedly be the issue of discovery disputes as more explore ways to use it for tasks such as summarization, document review, settlement analysis, and early case assessment. The key takeaway in Mata is that litigators must proceed with caution or could be subject to sanctions and reputational harm. Understanding the risk of hallucinations in generative AI is critical and reaffirms the need to check sources for accuracy. This in no way is meant to make lawyers afraid to use these tools, but instead to ensure they are using them responsibly and accounting for ethical obligations. This also sends a message to be transparent with clients, opposing counsel, and the court about using emerging technologies.

Mills v. Steuben Foods, Inc., No. 19-CV-1178WMS(F), 2023 WL 179579 (W.D.N.Y. Jan. 13, 2023)

In this employment discrimination case, Plaintiff sought all documents in defendant’s possession that involved plaintiff. The request was broad and did not ask for a specific format. The response to this singular discovery request included over 111,896 pages. Plaintiff filed a motion to compel asking the court to order Defendant to reproduce this information in a text searchable format with a corresponding production log. The court denied the motion, noting that plaintiff’s original requests did not specify this and the documents produced were reasonably usable to search through in accordance with FRCP 34.

This case is a reminder that parties need to put care into defining production requests. This is a basic requirement that can cause a lot of headaches if not upheld. Parties need to think through what they want produced and how, and then be clear in their ESI protocols to avoid receiving data in an unusable format. If they do get a large amount of data, performing an AI-driven early case assessment can greatly help understand what the key issues are and what documents will be relevant. Using these tools allows parties to quickly sort through data dumps and create case strategy.

Tucci v. Gilead Scis., 2:21-CV-1859-NR (W.D. Pa. May. 22, 2023)

A discovery dispute arose in this wrongful termination case regarding privilege assertions. Plaintiff filed a motion to compel documents relating to internal investigations, arguing they contained relevant information. The number of documents at issue was fairly small, and Defendant had claimed a blanket privilege with no corresponding log. The court granted the motion, finding that categorical privilege assertion was improper and ordered production of all relevant documents along with a privilege log explaining what is being withheld and why.

This decision reminds litigators that they need to proactively review documents for privilege and make sure they are not withholding relevant information. This is another example of courts not allowing parties to circumvent their basic duties. This dispute likely could have been avoided if more work was put into wholly responding to the discovery requests, especially since the document pool was smaller. This is not to say that categorical privilege is never okay, but courts expect litigators to know when that is appropriate and to ensure production is complete to the best of their ability. This also serves as a reminder to tap into eDiscovery tools that can help tag potentially privileged documents and create logs to fulfill discovery obligations more efficiently and expediently.

Conclusion

Understanding 2023’s key trends will help litigators develop discovery strategies. There is no doubt courts will continue to expect litigators to be proactive and utilize tools that streamline cases. However, it will be interesting to see how judges approach ESI protocols in 2024 as there is more emphasis on flexibility and the role of generative AI as an exciting, emerging new technology.