eDiscovery Daily Blog

• October 20, 2025

Masters Conference: Philadelphia, 2025 |  Article by Rick Clark

The 2025 Masters Conference in Philadelphia kicked off with a powerhouse panel tackling one of the most anticipated topics in the industry: “The State of eDiscovery: Case Law and Hot Topics.” Moderated by Nicole Marie Gill of CODISCOVR, the session brought together thought leaders Nicholas Berenato (CODISCOVR), Doug Austin (eDiscovery Today), and Jerry Bui (Purpose Legal) to explore recent case law shaping discovery practice and emerging trends redefining how organizations manage modern data. 

From possession, custody, and control disputes to the challenges of deepfake evidence and AI-generated content, the discussion offered a timely look at how courts and practitioners are adapting to rapid technological change. 

Possession, Custody, and Control: The Continuing Challenge 

Several recent rulings highlighted the nuances of control over electronically stored information (ESI), especially as new data types proliferate. 

• Vaughn v. Solera Holdings addressed the discoverability of Slack messages. Because the company’s Slack configuration lacked an export license, the court ruled that Solera wasn’t obligated to produce those messages. 

• Bui noted that this decision underscores the need for litigation-ready platform configurations, adding that he was surprised by the outcome. 

• Austin observed that the requesting party missed an opportunity to argue the opposing side’s capability to obtain that data. 

• In Allergan Inc. v. Revance Therapeutics, a dispute over mobile device data raised questions about possession and control in a BYOD (Bring Your Own Device) environment. 

• Berenato emphasized that organizations should explicitly address collection rights in their BYOD policies while respecting employee privacy. 

• Austin added that corporations are increasingly avoiding mobile device discovery which is a trend he expects to continue as many corporate communications are being advised in policies to avoid such communications via text or mobile chat apps that are non-sanctioned by the organization. 

Hyperlinked Files, Attachments, and Accessibility 

Cases such as Hubbard v. Crow and Young v. Salesforce, Inc. highlighted the growing complexity around hyperlinked documents and data accessibility. 

In Hubbard, the plaintiffs were sanctioned when they couldn’t produce a four-minute segment of a podcast linked via a broken hyperlink. 

• Bui pointed out that many organizations rely on platforms that maintain content access, and hyperlinks should ideally lead to the underlying documents. 

• Austin noted the importance of data archiving practices that preserve contemporaneous versions, including metadata that shows who edited what, and when. 

ESI Protocols and Judicial Oversight 

In Hall v. Warren, when the parties couldn’t agree on ESI protocols, the judge imposed one instead. The panel agreed that this case reinforces the need for collaboration and early agreement on discovery protocols to avoid court intervention. 

Deepfakes: The Next Frontier of Evidentiary Risk 

A standout discussion centered on Mendones v. Cushman & Wakefield Inc., where much of the evidence turned out to be deepfake video content. 

• Bui described how poor lip-syncing and mismatched audio made the deepfakes obvious this time. But he cautioned that synthetic media is improving quickly, and future cases may be far harder to detect and require experts to help validate. 

Emerging Technologies and the Information Governance Connection 

Turning to the “left side” of the EDRM, Gill asked how emerging technologies are influencing information governance (IG) and discovery readiness. 

• Berenato stressed the need for AI frameworks, governance training, and data minimization strategies to manage risk. 

• Bui highlighted the value of preservation-in-place strategies and the importance of involving corporate IT early, leveraging tools like Microsoft 365 and Purview to make IG data more searchable. 

• Austin cautioned that as data organization shifts away from solely custodians, in-place preservation can become problematic, expanding the scope of legal holds. 

Chat, Collaboration Apps, and Generative AI Data 

When the conversation turned to Slack, Teams, and AI-enabled platforms, Bui noted the emergence of a “third category” that is AI-generated data created by digital agents, such as Microsoft Co-Pilot.
He suggested that metadata models may need to evolve to include a new “author” field identifying AI agents. 

Austin added that while technology isn’t perfect, consistent processes and defensible procedures remain key to managing risk as AI becomes embedded in workflows. 

Strategies for Cost, Risk, and Compliance 

Across the panel, a common theme emerged: less data equals less risk. 

• Berenato urged organizations to minimize retained data to only what’s necessary for business or legal reasons. 

• Bui noted that Microsoft 365’s labeling and categorization features can simplify IG planning and retention. 

What’s Next for eDiscovery? 

Looking ahead, the panelists agreed that privacy, AI, and cross-border data will drive the next phase of eDiscovery transformation. 

• Berenato predicted that diverging state privacy laws will complicate compliance but noted that technology is evolving to keep pace. 

• Bui highlighted ongoing tensions between privacy and forensic collection, especially in global matters. 

• Austin forecast that linear review is sunsetting faster than expected as AI accelerates review workflows. He also referenced the upcoming EDRM 2.0 model, which aims to modernize frameworks for modern data types. 

• Bui closed by reminding practitioners that the pace of change demands continuous learning, as data types, threats, and technologies evolve faster than ever before. 

Key Takeaways 

From Slack messages and mobile data to deepfakes and generative AI, today’s eDiscovery landscape is expanding beyond the traditional boundaries of ESI. This session underscored that litigation readiness now depends on proactive governance, defensible processes, and a firm grasp of emerging technologies. 

As Austin aptly summarized: “We’re in a modern data era and the types of data we haven’t even anticipated yet will soon be part of discovery.”