Time for the third installment of Key eDiscovery Points with Brett Burney of Nextpoint! Here’s what Brett and I have been discussing recently!

Back in November, I promoted our first episode in the video series that discusses blog posts from eDiscovery Today and lessons learned from them – that first episode was about the big redaction flub that affected Tiktok. Since then, we’ve tried to record a new episode most weeks and, back in April, I provided a second installment of Key eDiscovery Points here.

Here’s the third installment of Key eDiscovery Points:

• Do Your Best to Avoid Discovery Shenanigans!: Here, Brett and I break down a sharply worded ruling from Judge Matthewman in 777 Partners v. Leadenhall Capital (covered by me here). After repeated delays, disputes, and disregard for court orders, the judge denied the plaintiffs’ motion to compel – calling out the parties for their “discovery shenanigans.” Wow!
• Navigating Clawbacks When In-House Counsel are Included: Here, Brett and I break down a key antitrust ruling in De Coster v. Amazon.com (covered by me here), where a judge ordered 54 of 85 in camera-reviewed documents to be produced, despite Amazon’s claims of privilege and work-product protection. Oopsie!
• Petty Finger Pointing Over Search Terms Results in Wasted Time: Here, we discuss key takeaways from Tremblay v. OpenAI (covered by me here), where the court denied plaintiffs’ proposed search terms for a third time. We discuss proportionality, privilege logs, the importance of search strategy in eDiscovery and the irony of a case involving a company with an AI model using search terms. 😉
• Don’t Get Caught with Your Hand in the Production Cookie Jar: See what Nextpoint did there? 😉 Here, Brett and I unpack a court’s bold move in the Meta Pixel healthcare case (covered by me here) – ordering the production of third-party cookie data tied to sensitive health info. Tune in as we dive into the privacy stakes, eDiscovery twists, and what this means for class action strategy.
• BYOD Case Law Covering Subpoenas and Employee Handbooks: This was an interesting ruling that Brett and I covered in Allergan v. Revance (covered by me here) concerning “BYOD” – or “Bring Your Own Device” – policies. The court denied Allergan’s motion to compel searches of employee personal devices, finding Revance lacked Rule 34(a) control. Despite citing BYOD and handbook policies, the Special Master ruled these did not give Revance legal or practical authority over the devices. Without clear control or direct subpoenas to employees, no discovery was required.
• A Judicial Approach to Handling AI-Generated Evidence: Hey, we discuss more than just cases! Here, we discuss how courts are beginning to address the challenges of AI-generated evidence, including deepfakes. Drawing from the latest article by Maura R. Grossman and Hon. Paul W. Grimm (ret.) (covered by me here), we explore proposed rule changes, evidentiary concerns, and practical steps for legal professionals dealing with synthetic media in litigation.
• Detecting AI is Difficult and Tricky!: Here, we dive into my experiment with AI detectors (covered by me here), specifically ZeroGPT, to see if these tools can truly tell the difference between human and machine-written content. Spoiler alert: the results were mixed. Tune in for a candid discussion about the (in)accuracy of AI detection, the implications for legal professionals, and why a healthy dose of skepticism still matters.
• ESI Protocol Objection Denial Party: Here, Brett and I break down a recent ruling in Hall v. Warren (covered by me here), where a federal judge shut down every single objection raised by the City of Rochester against an ESI protocol order imposed on them by the Magistrate judge. From metadata demands to native file formats, watch as we unpack what the court’s decision means for legal teams navigating ESI disputes – and why strong protocol planning matters.
• Think About Who Has Control Over a Hyperlinked File: It’s hyperlinked files time! Here, we unpack Hubbard v. Crow (covered by me here), a case where a court tackled the tricky issue of possession, custody, and control over a hyperlinked podcast file. From broken links to edited recordings and corrupted SD cards, this case raises big questions about digital evidence and spoliation under Rule (37)e. Tune in to hear our take on what this ruling means for the future of ESI collection and your discovery obligations.
• A Gentle Distinction for Agentic AI: And here we break down the key differences between Agentic AI and Generative AI – two technologies making waves in the legal tech world (covered by me here). Learn how one reacts while the other takes action, and why Agentic AI could be the next big shift in eDiscovery!

All these video discussions are short and sweet, so they’re a quick and easy listen!

Brett and I will continue to record these when we can, so I’ll circle back periodically with more Key eDiscovery Points! In the meantime, enjoy the third installment of Key eDiscovery Points with Brett Burney of Nextpoint!

So, what do you think? Which Key Discovery Point is your favorite? Please share any comments you might have or if you’d like to know more about a particular topic.

Image created using GPT-4o’s Image Creator Powered by DALL-E, using the term “robot putting a key into a door lock of a locked door”. I think DALL-E missed the “key” to a good image here! 😀

Disclosure: Nextpoint is an Educational Partner and sponsor of eDiscovery Today

Disclaimer: The views represented herein are exclusively the views of the authors and speakers themselves, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.