Morgan Lewis' New E-Data Practice Head: Gen AI Impact on E-Discovery Costs Isn't Clear

October 17, 2023

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When Scott Milner first joined what is now the e-data practice at Morgan, Lewis & Bockius he recalls many “paper cuts in warehouses.” This week, he assumed the new role of global head and practice group leader of the firm’s e-data practice group.

Below, Legaltech News caught up with Milner to discuss what he expects to be some of the top challenges for e-discovery professionals to grapple with going into 2024, whether they’re new issues with emerging technologies or old principles around electronically stored information (ESI) protocols that may need to be revisited.

The following conversation has been edited for length and clarity.

Legaltech News: Tell me about this new role as global head of the e-data practice. What does it bring in terms of new responsibilities going forward?

Scott Milner: I actually was lucky enough to be one of the first hires before e-data was even formed. So I’ve had the pleasure of getting to be part of the journey of e-data from our inception to where we are today. … From the change in position, my job is to continue to look at how to be forward thinking, how to continue to bring innovation and change in our people and process [and] technology, solve some of our clients’ unique challenges, and as new data types roll out, we’re going to get to continue to be on the forefront of solving those challenges.

Paint me a picture of e-discovery in 2023. What are some of the issues that we have resolved as an industry and the challenges that many still struggle with?

The challenge that we’re continuing to think about and addressing is just emerging technology. And that’s the biggest one, it’s just understanding how corporations and their employees like to communicate. And I call it a little bit of a whack a mole because you can know all the technology, but there’s a new technology rolled out every day. I think there’s also a little bit of a look back on things that were potentially best practices before and whether they need to be best practices now. So one of the areas that we’re seeing a lot of rediscovery and reconsideration of is the value of ESI protocols.

And I think that’s one that you’ll start to see … leading practitioners talk about the evolution of the ESI protocol and is it creating dispute minimization? Are the judges getting the benefit of parties going through this process? Are the corporates getting the benefit? Are even the requesting parties getting the benefit? So that’s one that we’re tackling now is revisiting how ESI protocols are used in matters and right-sizing it.

It sounds like many professionals still struggle with certain messaging data, especially Microsoft Teams—why do you think that is?

The definition of a document is changing. …. I don’t necessarily think that the word document is always appropriate anymore. … What is a document in a Teams’ chat? Is it an individual chat back and forth? Is that one document? Is it an entire chat string? Is it the entire 24-hour period? And that’s a lot of the things that we’re working through when you’re litigating or discussing these issues, whether it be in a regulatory context or litigation context.

I think the other big change and why you just have to think differently about this data is how people write. … People are using emojis. They’re using reactions. They’re using memes, they’re using acronyms. And so understanding how to work with that information is what I think separates the really strong professionals in our space, because it’s not your discovery from 2000 anymore.

Do you see emerging technologies like generative AI or new types of data putting pressure on the Federal Rules of Civil Procedure? Do they need to be updated for modern age e-discovery?

You have a duty of competence, you have a duty to stay on top of emerging technologies. We talk a lot about ethics in AI. What is the duty of supervision these days … to supervise the lawyer or other people working on your matter, but now does it extend to the duty to supervise the technologies available? So I think it’s something critically important that we as practitioners understand these issues, as part of our day-to-day legal responsibilities.

You still need to have the legal expertise to use the information available to us under the Federal Rules of Civil Procedure, proportionality arguments. So they still have a huge interplay and are critically important to our day-to-day practice.

E-discovery is oftentimes the most expensive part of legal matters, do you see generative AI bringing these costs down or adding to that burden?

I actually see both sides of that. … People forget that there are all kinds of other AI/analytics tools that are still available that are well endorsed by the courts, adopted by the regulators, that can do a lot to reduce the discovery costs. The fact that you still see disputes related to TAR and use of email thread suppression, these are areas of analytics that can still have a very big measurable impact in reducing the discovery costs.

As you move further down the chain with generative AI, there’s the discussion of disclosure requirements … Part of the speculation is if you’re gonna spend so much money negotiating a protocol around generative AI and how you describe the process, do you end up saving the money? But I think there’s a lot of other use cases for generative AI to help with post-production analysis, deposition prep, and finding facts faster and learning more about whether a document may or not be privileged.

One big issue that is arising is around generative AI-creating deepfakes which are becoming much more sophisticated. Are we seeing or will we see e-discovery professionals vetting tools that can screen generative AI input? Is that technologically possible today?

This is one where I think we’re still early. I can tell you I’m familiar with a larger uptick in fake evidence cases. I’ve worked with a number of forensic partners that are testifying definitely monthly at this point on assessing evidence and whether there’s a potential for fake evidence … I do think it’s something that the practice and the bar is more aware of now and keeping more of an open eye on it.

This summer the European Commission adopted its adequacy decision for the EU-U.S. Data Privacy Framework (DPF). How do you expect the new framework to impact cross-border litigation and e-discovery? Will it make it easier?

We’re monitoring it. … As for whether it’s going to be easy or not, I think that’s still to be determined. I think there’s still case law coming out there that shows the inherent conflict between [outside]-U.S. data privacy requirements and U.S.-based litigation. And so I think that’s going to continue. … But I do think that’s something we’re keeping on top of to see how we can make it easier or how we leverage what we learned from these frameworks for arguments on why maybe the expansion into [outside]-U.S. data is burdensome and disproportionate.