Insights · eDiscovery & ESI
Where discovery meets the record.
Working analysis on the questions that decide eDiscovery disputes — from spoliation and TAR validation to authenticating AI-generated evidence.
Why \"Follow the Money\" Is No Longer Enough: Digital Forensics in White-Collar Fraud
For decades, financial tracing has been the workhorse of fraud litigation. But tracing can show that money moved without proving what people knew or intended — and in modern fraud cases, knowledge and intent live in communications, not ledgers.
Incident Response and the Amended Reg S-P: New Breach Obligations Reach Smaller Firms
With the June 3, 2026 compliance deadline for amended Reg S-P, smaller registered firms must now implement documented incident response plans and defensible notification processes — no longer optional.
AI Disputes in Arbitration: How the JAMS AI Rules Streamline eDiscovery in ADR
AI-related disputes generate the kind of evidence — opaque models, evolving training data, sprawling unstructured logs — that traditional discovery handles badly. Arbitration, and the JAMS AI Rules in particular, offer a more workable path.
Generative AI in eDiscovery: Defensibility, Risks, and Best Practices
Generative AI has moved from pilot to production in eDiscovery — classifying, summarizing, and surfacing privilege at a speed manual review cannot match. The capability is real, and so are the risks: defensibility in 2026 depends on the controls you put around the model, not the model itself.
Ephemeral and Mobile Messaging: The New Spoliation Battleground
Auto-deleting chats and the migration of substantive conversation onto phones have made messaging the most contested corner of ESI. Under Rule 37(e), the question is no longer just whether data is gone — it is whether the loss was reasonable, intentional, and prejudicial.
TAR and Predictive Coding in 2026: What Litigators Need to Know
More than a decade after Da Silva Moore blessed predictive coding, technology-assisted review is no longer novel — it is expected. The fights have shifted from whether you can use TAR to how you validate it and what you must disclose.
How to Choose an eDiscovery Expert Witness Who Survives a Daubert Challenge
An eDiscovery expert is only as valuable as the opinions that survive the other side's motion to exclude. The December 2023 amendments to Rule 702 sharpened that test — here is how to vet an expert before you retain, not after the Daubert motion lands.
When AI Acts on Its Own: Agentic AI, Discoverability, and the Governance Record
Agentic AI has moved from demo to deployed infrastructure — systems that pursue goals, call tools, and execute multi-step workflows with limited human supervision. When an agent acts on its own, the hard questions are who is accountable and whether the decision can be reconstructed in discovery.
Forensic Neutrals and Special Masters in Complex Litigation: What They Do and When to Ask for One
Complex litigation increasingly turns on forensic images, source code, and accountings too technical or voluminous for a judge to referee alone. How court-appointed forensic neutrals and Special Masters preserve efficiency and fairness — and when to ask for one.
The Hallucination Tax: AI Negligence, Sanctions, and the Duty to Verify
When a generative model fabricates a citation or a metadata field, the cost lands on the lawyer who filed it. The hallucination tax is the surcharge that incompetence imposes on the whole proceeding — and the fix is a disciplined duty to verify, not avoiding AI.
Deepfakes and the Integrity of Evidence: Detecting and Challenging Synthetic Media in Court
AI can now generate videos, voices, and photographs convincing enough to deceive untrained observers and persuade fact-finders. As synthetic media enters courtrooms, here is how litigators and forensic experts should approach detecting and challenging deepfake evidence.
Authenticating AI-Generated Evidence Under FRE 901 and 902: Do the Rules Still Work?
Generative AI can produce images, audio, and video that neither jurors nor experts can reliably distinguish from the real thing. Are FRE 901 and 902 still up to the job, or do we need a new rule built for synthetic media? Where the debate stands and what litigators should do now.
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