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 July 13-19. Here’s what’s happening.
Why AI metadata analysis is crucial
On the EDRM Blog, Shannon Bales writes about the critical differences between AI analyzing only bodies of documents (the text and images you can see in emails, PDFs, and other documents) and also analyzing metadata (which include file names, dates, and other markers that aren’t visible).
In addition to a detailed explanation of document content and metadata as well as generative AI workflows, Shannon shares several examples of legal risks that arise from confusion between document content and metadata analysis. One helpful illustration involves using generative AI tools to analyze documents to construct a chronology.
As Shannon writes, if you query AI to “Build a timeline of key events based on emails exchanged between January and March 2023” and your AI tool doesn’t analyze metadata in the documents, it may hallucinate or estimate dates instead of pulling from the actual “Date Sent” or “File Created” date in the metadata. If the body text of the email only discusses vague timelines, like “next month” or “Q1,” it’s also possible AI may misorder events because it cannot anchor those dates to an exact time frame.
A trusted eDiscovery provider like Array will be able to work with you to select AI tools that can leverage metadata analysis in addition to content analysis to ensure more accurate outputs when generating timelines or extracting other crucial details from documents.
Spoliation evidence permission granted following monetary sanction
On eDiscovery Today, Doug Austin wrote about Clayton Int’l, Inc. v. Neb. Armes Aviation, LLC, a Nebraska case in which a magistrate judge only awarded monetary sanctions when it was found that the defendant disposed of a laptop hard drive after the start of litigation. However, upon objection by plaintiff, a Nebraska District Judge found that non-monetary sanctions in the form of an instruction to the jury on the evidence spoliated should also have been awarded.
The suit was filed in August 2021. A month later, defendant Tracy Ogle disposed of his laptop hard drive after reporting it had malfunctioned and took it in for service, installing a new one in November 2021. The plaintiff, however, was not told of the ESI loss until October 2022. The plaintiff moved for sanctions under Fed. R. Civ. P. 37(e), requesting the reimbursement of attorney fees and costs arising from the ESI loss and permission to present spoliation evidence at trial.
The magistrate judge found that “there was likely relevant information on the laptop and Ogle had an affirmative duty to preserve it,” but did not find bad faith on Ogle’s part and only ordered monetary sanctions. On review of the plaintiff’s objection, the district court judge disagreed.
“Based on the evidence presented, the magistrate judge found that the destroyed ESI contained information that was likely relevant to this litigation. The payment of fees and costs do nothing to address the high probability that Ogle’s actions deprived Clayton International of information that could support its claims. The Court agrees with the magistrate judge that Ogle’s actions caused Clayton International to expend ‘additional time and effort[ ]’ investigating and litigating the issue, for which monetary sanctions are appropriate. It disagrees, however, with his conclusion that the harm caused to Clayton International ‘may only be cured with monetary sanctions.’”
“…The Court will therefore permit the parties to present evidence regarding the destruction of Ogle’s hard drive at trial.”
As we’ve said before, this is another example of why engaging with an eDiscovery specialist as soon as litigation is filed can help your party comply with preservation requirements and avoid costly sanctions.
Other recent eDiscovery news and headlines:
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