Navigating the evolving world of e-discovery, info governance and synthetic intelligence

January 05, 2026 – As the brand new 12 months begins, we discover key areas in e-discovery the place firms being knowledgeable and consulting the fitting professionals will likely be essential.

Preservation: the important step you continue to should prioritize

Companies are quickly upgrading info expertise (IT) methods, together with collaborative platforms with ephemeral messaging, and AI-enabled applied sciences, all of which current challenges for preservation within the occasion of litigation or regulatory motion. These novel sources might auto-delete, model over, or retailer knowledge in codecs requiring specialised workflows. Further, firms’ preservation efforts could be compromised by retention insurance policies, custodial misunderstandings, or vendor limitations.

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Counsel should take an energetic position in firms’ preservation efforts with a view to:

•Scope: Define custodians, date ranges, and knowledge sorts, together with non-traditional sources, together with ephemeral content material and cellular knowledge.

•Update templates: Ensure that authorized holds and custodial interview types embrace newer knowledge sources, akin to AI applied sciences and AI-generated supplies which may be related.

•Technical implementation: Ensure that the authorized division collaborates with the IT crew to droop auto-deletion and retention jobs, allow authorized maintain features, or implement purposeful equivalents the place no native maintain exists.

•Education and alignment: Consider offering custodian coaching to forestall self-help deletion, and align enterprise, IT, human assets, and safety groups on preservation aims. Consider written affirmation of maintain implementation.

Data sources in 2026 and past

As firms undertake progressive knowledge sources, together with AI methods, particular preservation protocols and techniques could also be wanted. For occasion, will the corporate protect its AI mannequin coaching knowledge and prior variations? Will any AI mannequin testing be wanted?

Meeting recordings and AI generated transcriptions generate quite a few artifacts. Will all artifacts be retained — (e.g., transcripts, attendance studies, summaries, audio summaries, and podcasts generated from the recording) — or simply the precise recording? Do you already know the place that info is saved? Does it differ primarily based upon the kind of assembly or who scheduled the assembly?

Such novel knowledge sources benefit particular consideration:

•Threshold evaluation: Evaluate whether or not the brand new knowledge sources include related info and, if that’s the case, decide if preservation and manufacturing are proportional.

•Ensure defensibility: Implement standardized and documented processes to ascertain a transparent, verifiable chain of custody.

•Bridge the hole between authorized and IT: IT personnel might perceive the methods however may not totally grasp the authorized obligations and nuances of discovery. It is necessary to have somebody who can translate authorized necessities into actionable technical directions.

•If not proportional, lay out burden: To handle the problem of disproportionality in discovery on account of growing knowledge volumes, it is necessary to develop metrics that reveal how the undue burden outweighs any potential evidentiary worth. This entails quantifying the burden and evaluating it to the anticipated advantages of the invention course of.

Increased requests for cellular units, messaging apps, and compliance insurance policies

With the proliferation of cellular knowledge, events more and more request knowledge associated to cellular machine utilization. Determining whether or not a corporation has possession, custody, or management over cellular machine knowledge could be advanced.

Key elements embrace:

•Business use: If the machine is used for enterprise functions, akin to accessing firm electronic mail or purposes which might be backed as much as firm methods or whether or not they have distinctive knowledge, akin to chat or textual content messages.

•Employer insurance policies: A transparent BYOD (Bring Your Own Device) coverage that addresses knowledge management and worker obligations is essential.

•Legal proper customary for possession, custody and management: The employer should have a authorized proper to acquire communications from the machine.

•Practical capacity customary for possession, custody and management: The employer should have the sensible capacity to entry the info, which could be difficult with trendy cellular units.

Consider whether or not your jurisdiction applies the authorized proper or sensible capacity customary. Familiarize your self along with your cellular machine insurance policies and achieve a transparent understanding of how custodians are utilizing their units, not simply theoretically. This might embrace investigating and asking about actions akin to texting and using third-party purposes.

Many organizations are contemplating establishing info governance applications to handle cellular units and messaging. These applications typically embrace metrics and danger assessments to judge off-channel communications and cellular messaging utilization. There is a rising demand for this info to evaluate possession, custody, or management.

Expanding position of data governance

Proper governance enhances knowledge accessibility, consistency, and trustworthiness. It ensures compliance with knowledge privateness legal guidelines, reduces authorized penalties, and manages dangers associated to knowledge breaches and different threats.

It is necessary that firms have their info governance (IG) so as, which can embrace:

•Record retention schedules;

•Data disposition insurance policies and procedures;

•AI insurance policies and coaching;

•Bring Your Own Device insurance policies;

•Legal maintain insurance policies and procedures;

•Merger/acquisition/divestiture greatest practices when applicable.

Generative AI and written discovery

Understanding your AI insurance policies and practices is essential when responding to written discovery requests associated to generative AI.

Government companies and events are updating their definition of “documents” to incorporate AI prompts, conversations, logs, outputs, and selections. These updates can considerably affect the way you gather, evaluation, and produce info.

Generative AI and protecting orders

The permissibility of an opposing get together utilizing your produced paperwork to coach their non-public giant language mannequin or AI platform depends upon the phrases outlined in protecting orders and different related agreements. It is necessary to fastidiously evaluation these paperwork to grasp any restrictions or permissions relating to using produced supplies for AI coaching.

Rise in AI deep faux proof

Generative AI deepfakes are making their means into court docket. With one of many first reported deepfake proof instances in September in Mendones v. Cushman Wakefield (Cal.Super. Sept. 9, 2025), events ought to take into account the potential era of pretend proof.

Burden breakdown: Persuading the court docket

Issues associated to metadata (akin to atypical fields or copyright info) and inside knowledge traits (akin to fonts being off, movies glitching, or coloration scheme adjustments) might point out the fabrication of proof.

Data proliferation is escalating discovery burdens. To help a burden affidavit, be ready to supply particular particulars like estimated prices, the quantity of paperwork, and the time required for preservation, assortment, and evaluation.

Perform the next to help a declare of undue burden:

•Quantify prices with particular examples for search, assortment, and evaluation.

•Detail the quantity of paperwork with proof somewhat than unsupported claims.

•Explain the time dedication to finish the invention.

•Provide proof — help your claims with proof.

•Explain why the possible advantage of the requested discovery is outweighed by the burden.

•Discuss the restricted relevance and the way the invention shouldn’t be central to key points within the case.

•Offer much less burdensome different sources of comparable proof.

In conclusion, as we navigate the complexities of the brand new 12 months, staying knowledgeable and consulting the fitting professionals is extra essential than ever. Organizations ought to proceed to prioritize knowledge preservation, particularly with evolving IT methods and AI applied sciences.

Effective info governance is crucial to handle cellular units and messaging, making certain knowledge accessibility and authorized compliance. By implementing sturdy methods and fostering collaboration between authorized and IT groups, firms can handle rising challenges and mitigate dangers related to knowledge administration and AI developments.

Tara Lawler is a daily contributing columnist on e-discovery for Reuters Legal News and Westlaw Today.