Lessons Learned for 2025: Spotlighting Five Key eDiscovery Trends from 2024 

With the New Year upon us, it is worth looking back at some of the top eDiscovery cases and trends from 2024 and exploring the lessons they offer going forward in 2025. 

1. Legal and Technical Savvy Are Key for Successful Uses of Artificial Intelligence 

Case: J.G. individually & on behalf of G.G. v. New York City Dep’t of Educ., 719 F.Supp.3d 293 (S.D.N.Y. 2024). 

Summary: Plaintiff sought to recover its attorney’s fees and costs. In an effort to substantiate the reasonableness of its rates, plaintiff’s counsel relied on (among other things) “feedback it received from the artificial intelligence tool ‘ChatGPT-4.’” While plaintiff’s counsel argued that ChatGPT could be “a useful gauge of the reasonable billing rate,” the court rejected this assertion and found that it “was misbegotten at the jump.” In doing so, the court cited both Park v. Kim, 91 F.4th 610 (2d Cir. 2024) and Mata v. Avianca, Inc., 678 F.Supp.3d 443 (S.D.N.Y. 2023) in which the courts respectively found that parties had relied on fabricated case citations generated by ChatGPT. In criticizing their reliance on ChatGPT, the court reasoned that counsel took no effort to substantiate the conclusions ChatGPT reached regarding reasonable billing rates. The court concluded its analysis by admonishing counsel “to excise references to ChatGPT from future fee applications.” 

Lessons for 2025: AI has taken the legal world by storm, with numerous lawyers, firms, and courts exploring the technology’s uses and upside. However, there are various issues with AI that emphasize the need for clients and counsel to carefully examine the technology’s analyses and outputs. This is particularly the case with AI’s baffling tendency toward hallucinations. As a reminder of AI’s potential for mendacity, the court in Kohls v. Ellison, No. 24-CV-3754, 2025 WL 66514 (D. Minn. Jan. 10, 2025) just excluded expert testimony from an AI expert because his written testimony included, of all things, “GPT-4o generated fake citations to academic articles.” Both Kohls and the J.G. matter encapsulate many judicial concerns with AI and they are both worth reviewing. Counsel should also consider reading the ABA’s 2024 ethics opinion on “Generative Artificial Intelligence Tools,” which highlights key ethical issues (competence, confidentiality, etc.) with AI. 

Honorable Mention: Iovino v. Michael Stapleton Assocs., Ltd., No. 5:21-CV-00064, 2024 WL 3520170 (W.D. Va. July 24, 2024). 

2. Disputes Over Family Production Provisions in ESI Protocols 

Case: In re Insulin Pricing Litig., No. 2:23-md-03080 (BRM) (RLS), 2024 WL 2808083 (D.N.J. May 28, 2024). 

Summary: The parties submitted for the court’s determination various competing provisions for inclusion in a court-ordered ESI protocol. One of the provisions at issue concerned whether the definition of a document family should include the production of hyperlinked documents “such that a producing party must maintain any document ‘family’ relationship for each hyperlink.” Plaintiffs argued that the protocol should require the production of communications and hyperlinked documents in family relationships. Defendants maintained that compliance with such a provision would be “technologically infeasible” and, in any event, unduly burdensome and disproportionate to the needs of the case. The court ultimately agreed with the defendants and adopted its family production provision. In doing so, the court determined that “hyperlinks are not the same as traditional attachments.” In addition, the court found that “commercially available tools” were either “not feasible whatsoever” for creating a family relationship “in the data environments or systems” belonging to defendants or were “unduly burdensome to apply to their respective data environments.” 

Lessons for 2025: Family productions—when they involved only emails and traditional attachments—were generally an unexceptional issue in discovery. As a result, parties often memorialized family production provisions in ESI protocols. The advent—and particularly the ubiquity—of hyperlinked documents has changed this. Parties often engage now in protracted negotiations and motion practice regarding whether family production provisions in ESI protocols should include hyperlinked documents. With a couple of exceptions, courts—consistent with the Insulin Pricing case—have not found equivalency between hyperlinked documents and traditional email attachments. In addition, courts generally do not order producing parties to turn over all hyperlinked documents in family relationships. However, there is variance and nuance in court rulings on this issue and case law remains unsettled. 

Honorable Mention: UAB “Planner5D” v. Meta Platforms, Inc., — F. Supp. 3d —, 2024 WL 4190879 (N.D. Cal. Aug. 26, 2024). 

3. Courts Are Wary of Discovery Process Issues  

Case: In re StubHub Refund Litig., No. 20-MD-02951-HSG (TSH), 2024 WL 3817068 (N.D. Cal. Aug. 13, 2024). 

Summary: The court issued an order rejecting plaintiffs’ request that defendant identify “non-custodial data sources likely to have relevant information.” Plaintiffs argued that defendant failed to disclose this information pursuant to the ESI protocol and as a result, defendant should be made to comply with this provision. The court—characterizing plaintiffs’ request as “a complete redo of non-custodial document discovery, and it is not anything less than that or different from that”—found the request to be untimely. The court reasoned that a requesting party does not “get to make an objection to the other side’s disclosure and then hold on to that objection forever and ever, and years later ask to start the whole process over from scratch. No way.” Plaintiffs had apparently not been diligent in pursuing discovery, with the court observing that in four years defendant had “taken 35 depositions and moved for summary judgment” while plaintiffs had only taken one deposition, “and that deposition wasn’t even their idea.” All of which, according to the court, seemed to substantiate StubHub’s assertion that “Plaintiffs have no interest in litigating their claims on the merits and instead want to weaponize e-discovery to drag out discovery as long as possible.” 

Lessons for 2025: Courts generally dislike having to address discovery process issues (often referred to as “discovery on discovery”) since they do not directly address the merits of a case. The StubHub case is not a classic case of discovery on discovery, but it’s ultimately a process issue and one which the court rejected due to an apparent lack of diligence by plaintiffs. While requests to address or otherwise explore another party’s discovery process are frequently denied, courts will also grant meritorious requests, particularly where a movant can demonstrate a key discovery process deficiency (e.g., preservation or search) through fact specific good cause. See LKQ Corp. v. Kia Motors Am., Inc., 345 F.R.D. 152 (N.D. Ill. 2023) (discussing the circumstances under which courts authorize “discovery on discovery”). 

Honorable Mention: In re Exactech Polyethylene Orthopedic Prods. Liab. Litig., 347 F.R.D. 572 (E.D.N.Y. 2024). 

4. Handling Preservation Duties Remains Elusive 

Case: Donofrio v. IKEA US Retail, LLC, No. CV 18-599, 2024 WL 1998094 (E.D. Pa. May 6, 2024). 

Summary: The court-imposed sanctions against defendant (IKEA) for, among other things, failing to preserve relevant emails from four key custodians. IKEA’s initial litigation hold did not encompass the four custodians at issue despite the relevance of those custodians’ emails. The first custodian’s Microsoft 365 emails were deleted once he left the company pursuant to IKEA’s ordinary practice for terminated employees who are not on legal hold. IKEA subsequently flagged the four custodians at issue for placement on legal hold (IKEA still was unaware that it eliminated the first custodian’s emails). Nevertheless, the IKEA employee designated for handling the implementation of the holds “dropped the ball” and did not do so. As a result, the other three custodians’ Microsoft 365 mailboxes with relevant messages were deleted once they left the company. The court found that IKEA was “grossly negligent” for failing to preserve the four custodians’ emails and issued an award of attorney’s fees pursuant to Rule 37(e)(1) to remediate the prejudice plaintiffs incurred. 

Lessons for 2025: Preservation is one of the fundamental steps in eDiscovery, yet its mastery is seemingly elusive for many clients and counsel. This may seem surprising given the number of years now that courts have emphasized the importance of ESI preservation (it has been 20 years now since Zubulake IV and Zubulake V), along with widespread education efforts on this topic. Nevertheless, preservation is not “simple,” particularly given the complexity of technology and the uncertainty that humans interject into the preservation process. Both of these factors were apparent in the preservation failures memorialized in Donofrio. And yet, building a defensible legal hold process, while challenging, is not impossible. Counsel can work with clients to effectively address preservation concerns and better ensure that preservation issues do not spiral into a discovery process issue. 

Honorable Mention: Two Canoes LLC v. Addian Inc., No. 2:21-cv-19729-SDW-JRA, 2024 WL 2939178 (D.N.J. Apr. 30, 2024), report and recommendation adopted, 2024 WL 3470851 (D.N.J. July 19, 2024). 

5. Parties Should Ensure ESI is Admissible as Evidence 

Case: Hossfeld v. Allstate Ins. Co.,726 F.Supp.3d 852 (N.D. Ill. Mar. 28, 2024). 

Summary: Defendant relied on a spreadsheet to support its summary judgment motion and, in particular, its argument that it did not violate the Telephone Consumer Protection Act of 1991 (“TCPA”). The spreadsheet reflected plaintiff’s phone number, which defendant asserted it received through one of its affiliates (Policy Genius) and which plaintiff allegedly voluntarily disclosed. Accordingly, defendant argued that plaintiff consented to the phone calls at issue and did not have standing to pursue his TCPA claims. The court rejected the defendant’s position, finding the spreadsheet to be inadmissible, and denied defendant’s motion for summary judgment on the issue of consent. First, the court found the spreadsheet to be inadmissible hearsay evidence. The court observed that the spreadsheet and corresponding witness testimony—which defendant offered to show how it eventually received the spreadsheet from Policy Genius and other of its affiliates—each had to satisfy the hearsay admissibility rules. The court then concluded that defendant failed to do so, indicating that these “multiple layers of hearsay, for which no exception or exemption has been established, render the witness’s testimony and the spreadsheet inadmissible.” The court also noted that defendant did not offer “an evidentiary predicate tracing the hearsay statements in the spreadsheet to their source, i.e., the data and statements that underly them.” Besides hearsay, the court found that defendant had not properly authenticated the spreadsheet since defendant’s witnesses did not establish that they had sufficient personal knowledge to substantiate the source of the spreadsheet. 

Lessons for 2025: The time, money, and effort spent on obtaining ESI during discovery will serve little purpose if the evidence is not admissible at summary judgment or trial. Hossfeld exemplifies this issue and highlights the need for parties to carefully use discovery tools (such as depositions and requests for admissions), along with stipulations, to better ensure ESI evidence is admissible. 

Honorable Mention: Dominguez v. Weiser Sec. Servs., Inc., No. CIV-21-653-SLP, 2024 WL 3706499 (W.D. Okla. Aug. 7, 2024).