Is eDiscovery being replaced by artificial intelligence (AI)? As Craig Ball notes, you’re not gone just because AI is here.

Craig’s post (Yes, AI is Here. No, You’re Not Gone., available here on his excellent Ball in Your Court blog) discusses how he sought to defend the value of his law school course on E-Discovery & Digital Evidence to a law Dean “who readily conceded that she didn’t know what eDiscovery was or why it would be an important thing for lawyers to understand.”

Craig noted that the Dean shared her sense that discovery is being replaced by AI and that “soon AI will handle the production of relevant information instead of lawyers.” He replied that he expected the review phase to be abetted or supplanted by AI in the near term—that’s here—but it would be some time before all the tasks that come before review would be fully AI-enabled.

He added that the idea that there are crucial tasks requiring lawyer intervention before review was surprising to her. For those who don’t manage electronic discovery day-to-day, electronically stored information seems to magically appear in review tools. But for eDiscovery folks, the march through identification, preservation, collection and processing is our path, and we know that no one, and no AI, can undertake an assessment of the evidence without facing the data.

And by “facing the data”, Craig means performing those left-side EDRM tasks to get there. As he notes: “As they say in these parts, ‘you’ve got to put the hay down where the goats can get it.’  Until AI is embedded in everything, until AI faces the data in every phone, cloud repository, storage medium and database in ways that support discovery, the goats can’t get to the hay.”

The lack of understanding on that point is something I’ve seen my entire eDiscovery career. Not my entire career, as my career began (as did Craig’s) before eDiscovery became a formalized discipline. Many legal professionals that I’ve worked with don’t get the left side of the EDRM, or why it’s not just a simple copying of files to get started with search and review. Years ago, I wrote a blog post over a decade ago about that expectation and some of the tasks that had to be performed on data at the time – such as OCR of image-only files and opening of container files (like ZIP compression files or Outlook PST files), as well as workflows to address issues such as corrupt and password protected files.

It’s much more complex now. Data from mobile devices is common, as is data from collaboration apps like Slack and MS Teams. The move of data in the cloud has revamped left-side eDiscovery workflows and created new challenges (surely, you’re aware of the debate over hyperlinked files and whether they should be treated as “modern attachments, right?). Even the content created by generative AI is potentially discoverable and must be considered in discovery. New challenges never end.

So, you’re not gone as an eDiscovery professional just because AI is here. There are still many challenges facing our profession even if generative AI revolutionizes review. Craig ends his post by asking “What do you think?* What’s your projected timetable for massive change to the left side of the EDRM?”

With the EDRM 2.0 project well underway, my projected timetable is a matter of months. The move of focus to the left of the EDRM is just as big a story in eDiscovery as the genAI story. It just doesn’t have as many publicists. 😉

So, what do you think? Are you concerned about job security because of generative AI? Please share any comments you might have or if you’d like to know more about a particular topic.

*Hey, that’s my line! 🙂

Image created using GPT-4o’s Image Creator Powered by DALL-E, using the term “robot goats eating hay on a farm”. 😀

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