Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of September 21-27. Here’s what’s happening.
Unscientific poll: Keyword search still reigns but GenAI is gaining
On a recent eDiscovery Today webinar, 93% of 104 respondents to a survey said they use keyword search in some fashion to facilitate review. This was the full question presented by Doug Austin: “What approach(es) does your organization use to facilitate eDiscovery review for ACTUAL CASES? (Note: “TAR” = Predictive Coding).
And the results:
- Keyword search and/or TAR and/or GenAI: 37%
- Keyword search and/or TAR (never use GenAI): 32%
- Keyword search in all cases (never use TAR or GenAI): 24%
- TAR and/or GenAI (never use keyword search): 3%
- Keyword search and/or GenAI (never use TAR): 2%
- GenAI for all cases (never use keyword search or TAR): 2%
- TAR in all cases (never use keyword search or GenAI): 0%
While the results show the continued relevance of keyword search, they also reveal that nearly 40% of respondents indicated they are using GenAI in some form for review.
Forensic examination ordered for discovery misconduct
Austin also recently wrote about a discovery misconduct finding for “repeated misrepresentations” by a counter defendant in PlayUp, Inc. v. Mintas. Nevada Magistrate Judge Nancy J. Koppe granted Mintas’ motion for a forensic examination after finding the counter defendant “displayed many different types of behavior that warrant a forensic examination, including ‘failure[s] by the responding party to produce requested information,’ ‘serious questions’ about the reliability or completeness of the materials produced, ‘serious questions’ about the ‘candor’ of the producing party’s assertions, and ‘foot-dragging’ of the responding party.” Judge Koppe also found that “lesser remedies are not feasible,” ordering the forensic examination.
In one example of misconduct, the counter defendant was ordered to produce a PDF version of meeting notes in native format, including metadata. Mintas provided evidentiary support showing that the PDF had been altered, including an email that attached a different version of the same meeting notes, laying the foundation to find that the PDF produced had been altered for litigation advantage in addition to violating the court order.
Other recent eDiscovery news and headlines:
