Recent developments in eDiscovery case law highlight significant trends, including the challenges of discovery protocols in artificial intelligence and antitrust litigation, evolving court approaches to attorney conduct and privilege, and the increasing emphasis on proportionality, good faith, and technical competence in discovery disputes.
Below, we synthesize key takeaways from recent cases and provide actionable insights for stakeholders.
AI Litigation Spurs Early ESI and Deposition Planning
In a California federal case, visual artists alleged that the defendant used their works without their consent to train a generative artificial intelligence (AI) model, constituting widespread infringement. The parties could not agree on an electronically stored information (ESI) protocol, protective order, and the number of depositions and so submitted the issues to the court for resolution. The court largely adopted the plaintiffs’ proposed ESI plan and allowed up to 30 depositions, emphasizing the need for robust discovery planning in large-scale, technically complex cases. This ruling highlights the importance of addressing ESI and related issues early on where digital evidence is expected to be voluminous and varied.
Discovery Misconduct and Delay Backfire
A case in Florida’s Southern District centered on accusations that a business partner misused some of its former employees to access its proprietary data. Discovery had been contentious, with numerous disputes and motions filed. The court denied plaintiffs’ motion for additional discovery as untimely and lacking merit, noting that plaintiffs themselves had been the more obstructionist of the parties. This ruling reinforces that parties who fail to participate in discovery in good faith or delay their own obligations do so at their own risk and may lose their ability to compel further responses.
Investigating Document Preservation via Rule 30(b)(6) Deposition
A California federal case involving corporate deposition disputes in a mass tort litigation addressed allegations of data deletion and misuse of privilege. The court granted partial protective orders, finding some Rule 30(b)(6) topics overbroad and others unduly burdensome. However, it also required deponents to bring their laptops to demonstrate internal systems during depositions, with certain safeguards in place. The ruling reinforces that while courts are willing to cabin discovery requests, they also expect technical transparency and reasoned negotiation over sensitive information access.
Generative AI Output Log Data and Privacy Tensions
In a New York MDL alleging copyright infringement in training a generative AI platform, the court ordered the defendant to preserve and segregate output log data that would otherwise be deleted, even after denying the plaintiffs’ request for blanket preservation. This decision reflects courts’ increasing efforts to balance discovery interests with privacy concerns, especially when the data relates to user-generated AI content. Counsel should consider proactive proposals for anonymization and targeted retention.
Intentional Production Dooms Privilege Clawback
A Washington state antitrust case involved a motion by the defendant to clawback privileged documents allegedly produced inadvertently. The court found the production was not accidental and denied the request, concluding the production was not inadvertent under Rule 502(b) and therefore the court did not need to address the other elements of the rule. This decision reminds litigants that in complex matters involving multiple productions or internal legal reviews, courts are likely to scrutinize privilege claims and require clear evidence of inadvertence to grant claw back requests.
Limits on Compelling Discovery from Third-Party Devices
In a Colorado federal antitrust matter, the court denied a motion to compel production of text messages from personal devices of third-party individuals, citing lack of custody or control by the party to whom the request was directed. The motion was also filed after the close of discovery, despite that party having been informed on several occasions that it would need to seek that data from the third parties. This case reinforces the importance of timely, targeted requests and the difficulty of compelling data beyond a party’s legal reach.
§ 1782 Discovery Granted in Part for Lobbying Records
In a New York federal case involving a request for US discovery in aid of foreign proceedings, the court granted limited relief under 28 USC § 1782. The petitioner sought materials from a law firm accused of lobbying efforts that allegedly harmed its business interests abroad. The court allowed discovery of non-privileged documents related to those efforts but rejected broader requests. This ruling demonstrates the court’s willingness to authorize targeted § 1782 discovery when the statutory and discretionary factors are satisfied.
For In-House Counsel, Merits Counsel, Internal and External eDiscovery Professionals, and Business Leaders
As these recent cases demonstrate, courts continue to insist upon technical competence, professionalism, precision, and preparedness in eDiscovery. Whether managing privilege, navigating emerging technologies like AI, or coordinating global data access, stakeholders should remain vigilant and adaptable to meet evolving judicial expectations.