Key Takeaways:
- Companies must prioritize data preservation, especially with evolving IT systems and AI technologies.
- Effective information governance is essential to manage mobile devices and messaging, ensuring data accessibility and legal compliance.
- Organizations should consider implementing robust strategies and fostering collaboration between legal and IT teams to address emerging challenges and mitigate risks associated with data management and AI advancements.
- Generative AI and deepfakes are becoming increasingly relevant in court cases, and companies must understand their AI policies and practices when responding to written discovery requests.
- The burden of discovery is escalating, and companies must be prepared to provide specific details to support a claim of undue burden.
Introduction to E-Discovery in 2026
As we enter the new year, it is essential for companies to stay informed and consult the right professionals in the field of e-discovery. The rapid evolution of information technology (IT) systems, including collaborative platforms with ephemeral messaging and AI-enabled technologies, presents significant challenges for preservation in the event of litigation or regulatory action. According to the article, "companies are rapidly upgrading information technology (IT) systems, including collaborative platforms with ephemeral messaging, and AI-enabled technologies, all of which present challenges for preservation in the event of litigation or regulatory action." As a result, counsel must take an active role in companies’ preservation efforts to ensure that all necessary data is preserved and accessible.
The Importance of Preservation
Preservation is a crucial step in the e-discovery process, and companies must prioritize it to avoid compromising their efforts. The article highlights the need for companies to define custodians, date ranges, and data types, including non-traditional sources, such as ephemeral content and mobile data. As the article states, "counsel must take an active role in companies’ preservation efforts in order to: scope, update templates, technical implementation, and education and alignment." This includes ensuring that legal holds and custodial interview forms include newer data sources, such as AI technologies and AI-generated materials that may be relevant. Companies must also collaborate with their IT teams to suspend auto-deletion and retention jobs, enable legal hold functions, or implement functional equivalents where no native hold exists.
New Data Sources and Preservation Protocols
The adoption of innovative data sources, including AI systems, requires specific preservation protocols and strategies. The article notes that "companies adopt innovative data sources, including AI systems, specific preservation protocols and strategies may be needed." For instance, companies must consider preserving AI model training data and prior versions, as well as any AI model testing that may be necessary. Meeting recordings and AI-generated transcriptions also generate numerous artifacts, and companies must decide which ones to retain. As the article states, "will all artifacts be retained — (e.g., transcripts, attendance reports, summaries, audio summaries, and podcasts generated from the recording) — or just the actual recording?" Companies must evaluate whether these new data sources contain relevant information and determine if preservation and production are proportional.
Mobile Devices and Compliance Policies
The proliferation of mobile data has led to increased requests for data related to mobile device usage. Determining whether an organization has possession, custody, or control over mobile device data can be complex, and companies must consider factors such as business use, employer policies, and legal right and practical ability standards. As the article notes, "a clear BYOD (Bring Your Own Device) policy that addresses data control and employee obligations is crucial." Companies must also familiarize themselves with their mobile device policies and gain a clear understanding of how custodians are using their devices.
The Expanding Role of Information Governance
Proper governance enhances data accessibility, consistency, and trustworthiness, ensuring compliance with data privacy laws and reducing legal penalties. The article highlights the importance of having information governance (IG) in order, which may include record retention schedules, data disposition policies and procedures, AI policies and training, and Bring Your Own Device policies. As the article states, "proper governance enhances data accessibility, consistency, and trustworthiness. It ensures compliance with data privacy laws, reduces legal penalties, and manages risks related to data breaches and other threats." Companies must also consider implementing metrics and risk assessments to evaluate off-channel communications and mobile messaging usage.
Generative AI and Written Discovery
Generative AI and written discovery are becoming increasingly relevant in court cases, and companies must understand their AI policies and practices when responding to written discovery requests. The article notes that "government agencies and parties are updating their definition of ‘documents’ to include AI prompts, conversations, logs, outputs, and decisions." Companies must carefully review protective orders and other relevant agreements to understand any restrictions or permissions regarding the use of produced materials for AI training.
The Rise of AI Deep Fake Evidence
Generative AI deepfakes are making their way into court, and companies must consider the potential generation of fake evidence. The article highlights the importance of evaluating metadata and internal data characteristics to determine the fabrication of evidence. As the article states, "issues related to metadata (such as atypical fields or copyright information) and internal data characteristics (such as fonts being off, videos glitching, or color scheme changes) may indicate the fabrication of evidence." Companies must be prepared to provide specific details to support a claim of undue burden, including quantifying costs, detailing the volume of documents, and explaining the time commitment required for preservation, collection, and review.
Conclusion
In conclusion, as we navigate the complexities of the new year, staying informed and consulting the right professionals is more crucial than ever. Organizations should continue to prioritize data preservation, especially with evolving IT systems and AI technologies. Effective information governance is essential to manage mobile devices and messaging, ensuring data accessibility and legal compliance. By implementing robust strategies and fostering collaboration between legal and IT teams, companies can address emerging challenges and mitigate risks associated with data management and AI advancements. As Tara Lawler, a partner at Morgan Lewis, notes, "staying informed and consulting the right professionals is more crucial than ever. Organizations should continue to prioritize data preservation, especially with evolving IT systems and AI technologies."
https://www.reuters.com/legal/legalindustry/navigating-evolving-world-e-discovery-information-governance-artificial–pracin-2026-01-05/