I write this blog in tribute to one of my favorite science fiction writers, Ray Bradbury, who passed-on this week. In his honor I will try to write a kind of science fiction story of e-discovery. I will use some of Bradbury’s best quotes as a guide, starting with this one:
Science Fiction is any idea that occurs in the head and doesn’t exist yet, but soon will, and will change everything for everybody, and nothing will ever be the same again. As soon as you have an idea that changes some small part of the world you are writing science fiction. It is always the art of the possible, never the impossible.
I don’t think my humble effort will change everything for everybody, but hopefully it will amuse, and stimulate your thinking about what might be possible in fifty years. I plan to write it, stream of consciousness style, based on another of Bradbury’s quotes:
Your intuition knows what to write, so get out of the way.
Let’s see what comes to me.
Law in the Year 2062
With the recent closing of Laws R Us, there were now only twelve major law firms left. The move towards consolidation had been going on for decades, but had recently accelerated. The twelve big boys remaining now handled 80% of the world’s civil litigation. Of course, there were still hundreds of smaller regional firms, and even some solo practitioners, but they just got the scraps, or occasionally started a big suit. The world was just too complex, the laws too arcane and ever-changing for anything but a large team to master and handle efficiency.
I was glad to have gotten a job at one of the big-twelve, the prestigious Clinton & Bush conglomerate started in the U.S. back in 2020. They made it onto the Dow a decade ago and my stock options were still looking pretty good. I was eager to jump to the office.
Find out what your hero or heroine wants, and when he or she wakes up in the morning, just follow him or her all day.
A Day in the Life
This was a big day for me. Although I had been a lawyer for five years, I had only been with C&B for a few months, and yesterday was the first time a senior partner met with me in person to make an assignment. All my prior meetings with partners had been with their stupid holograms, where it was obvious they were triple or even quadruple-tasking at the same time they were talking to me.
The partner, Ylla they called her, assigned an important new case to me, well, at least assigned to me the one aspect of litigation that I knew anything about, the discovery procedures and search. I had never even been to a trial, much less the pre-litigation therapy sessions and mediations. I was glad of that, believe me. I heard they could be brutal.
China Space, Inc. v. Google, Inc.
This was a big case involving a contract dispute between China Space, Inc., and Google, Inc. Apparently there were long-standing animosities between these two. The mandatory initial therapies and mediations were thought unlikely to succeed. Everyone expected the International Court of Civil Justice to allow this case to proceed to formal litigation, maybe even trial. For that reason, the three-judge panel managing the case had already exercised its discretion to serve phase-one disclosures on both sides.
I was to lead the team responding to the judges’ discovery requests of Google. Although Google was no longer part of the Dow, it was still a large American company and a big player in what used to be called search. A mid-cap by global standards, it had over five million employees world-wide, with one million in the U.S. alone. Ten thousand of its employees were implicated as likely witnesses in the suit filed by China Space.
The dispute had something to do with the companies respective Mars Colony operations. Preliminary collection reports indicated that over 50 exabytes of Google’s ESI had been identified as potentially relevant. That meant almost 5% of its company data was involved. Yes. Like I said, this was a pretty big case and I was psyched to finally be the senior associate in charge of discovery.
EU’s Rock Star Judges
I had never even been to the Hague before, or dealt with these judges. But I had seen extensive discovery action in Silicon Valley and Beijing. Moreover, I knew I would have the help of the ten thousand attorneys in our Hague office. Still, I was nervous. The discovery requests coming out of the Hague were legendary in their scope and the judges famous for their perfectionistic attitude. It was as if they had never even heard of the basic rules of discovery concerning proportionality and permitted imperfections. Some of their more recent decisions had even called these well-established notions archaic and openly ridiculed the black letter rules of Scheindlin and the Sedona Conference. That would never happen in Beijing!
Rumor has it that the five senior trial judges assigned to the case had handpicked the three judge discovery panel with the express purpose of creating new law. They were the most famous discovery judges in the EU, rock stars of the latest technologies. Everyone in the discovery field knew that they were all itching for a test case. They wanted to advance the law to require both 100% recall and precision. Can you believe it? One hundred percent in both! That is impossible as everyone knows.
We are an impossibility in an impossible universe.
But was it really impossible? Call me crazy, but I was not so sure anymore.
Insanity is relative. It depends on who has who locked in what cage.
The Hague rockers could be right. I might be able to come closer to that goal than anyone before, maybe even 99%/100%. But I dared not say that out loud.
Latest Search Technologies
My last few cases working with an interplanetary consortium of information scientists convinced me that 100% was at least theoretically feasible for small datasets, ones of only a few hundred petabytes or less. I had spent thousands of hours with the new multi-dimensional Schrödinger computers searching for relevance and privilege information bits. I had learned a few tricks about legal search that even the scientists did not understand (or did not care to understand, not really sure with that bunch).
I know you’ve heard it a thousand times before. But it’s true – hard work pays off. If you want to be good, you have to practice, practice, practice. If you don’t love something, then don’t do it.
I loved this stuff. First it was there, and then it wasn’t. Just like Schrödinger’s cat. The observations in quantum wormhole space were fascinating. The data flows were always moving, always shifting. I can’t think of any other legal task I’d rather be doing. It was an exciting way to finally get at the truth, the whole truth, and nothing but. Well, except for alternate universes that is, but let’s not go there.
Love. Fall in love and stay in love. Write only what you love, and love what you write. The key word is love. You have to get up in the morning and write something you love, something to live for.
It was obvious that’s why the firm had picked me for this assignment. My knowledge and first-hand experience with the latest applications of quantum mechanics to ESI search would be useful in this case. Most of the senior partners did not want to have anything to do with 100% perfection and recall, much less quantum searches and alternate probabilities. They had enough problems mastering predictive coding back in the 2010s when most of them were starting to practice. They were afraid of quantum search and perfect recall, much less perfect precision. In fact, most of them were afraid of all forms of here one moment gone the next quantum technologies.
There was always a minority afraid of something, and a great majority afraid of the dark, afraid of the future, afraid of the past, afraid of the present, afraid of themselves and shadows of themselves.
It was mind-boggling how the new search technologies worked. I still could not get my rational mind around it. I only knew how to run the Schrödinger computer holograms and make it work. I leave it to the scientists types to philosophize ad nauseam about infinite universes and probabilities. I just knew how to do it for legal search. That was enough for me.
Don’t think. Thinking is the enemy of creativity. It’s self-conscious, and anything self-conscious is lousy. You can’t try to do things. You simply must do things.
It had taken Google’s internal discovery team nearly a day, but they finally had the pertinent ESI loaded into our preferred vendor’s computer systems. It turned out that nine-thousand and forty-eight employee ESI DNA sequences were triggered by the judges’ holographic search and 48.5 exabytes were collected for final culling and review. The KO vendor team was able to process all of that, and upload it into the global system for multi-sensory Schrödinger analysis in just a matter of hours.
My search team of lawyers and scientists, most of them in the Hague and my old turf in Beijing, had been working on the project for twelve to seven hours before my day even got started. My Silicon team would join us in three hours. I had personally trained most of them in multi-sensory Schrödinger analysis, plus, of course, the traditional bottom line driven proportional review basics. They were a good group and I knew I could count on them. A glance at the master billing clock showed the firm had already billed the client 1,000 hours since the project began early yesterday. Not bad. The senior partners will be pleased, at least if I don’t go over budget.
That pleasant thought counter-balanced my latest uploads on market fluctuations. Disturbing. One of those African hedge-funds had been shorting all of the law firms on the Dow, and I was getting hammered. I was beginning to wish I had elected to be paid in money. It was time for me to go to work and stop obsessing over my firm’s latest stock price swings.
I have two rules in life – to hell with it, whatever it is, and get your work done.
So I transported to my office and jumped right into the judges’ 4-D discovery request. It was incredible in both its breadth and detail. This panel was good, very good. No wonder all the top law students in the EU wanted to go into the judiciary. They not only got top pay, they got great assignments too.
The judges’ request started, of course, with a full 4-D recreation of what the plaintiff alleged, and then Google’s version of what happened. Nothing new there, but the panel’s simulation of the ESI that was likely involved in both versions was pretty impressive. So too were the alternate likely versions of what might have happened, and ESI flowing from each probable alternate scenario.
The judges and their team of clerks had also designed and submitted over a million mock-docs, which is what all lawyers back in the twenties started calling fictitious documents that might exist, should one side’s story be correct. Of course, the documents took all kinds of forms, some electronic, some chemical, some quantum. There were even a few paper writings. You don’t see them too often!
After a few hours of total immersion into this 4-D request I was mentally and physically exhausted, so I decided to take a break. It was well-known that efficiency drops if billable time is not periodically interrupted with rest breaks. Indeed, some client billing audit software was now requiring verification of these breaks. They would reduce fee payments if they were not timely taken to insure maximum efficiency. My firm had all of that built-in, which is one way they justified the multi-thousand dollar an hour billing rates. So I left the disco-chamber, which is what we had taken to calling the 4-D discovery immersion room, unhooked the laser brain connections, and called my dog over. Poppy I called him.
I wanted to spend some quality time with my best friend. Like most professionals, I jumped everywhere with my dog. Poppy was a new breed of swiss bulldog, with the latest brain implants of course. He even had an eye implant that not only allowed perception of all electromagnetic frequencies, but also worm space and approaching jumps. I loved talking to him and hearing his funny replies. I still remember what it was like to have a dog that you could only talk to, and could not talk back. This was much beter. I don’t care what PETA says! Poppy’s descriptions of his worm space perceptions using dog English are hilarious. His warning barks of imminent worm jumps into my personal space are also quite handy.
Poppy is the only person, well, only being anyway, that agrees with everything I say. Poppy is full of praise, especially when I give him treats and rub his ears. Certainly none of my wives are like that! Poppy and I enjoyed a nice lunch together and the session ended as usual, with his licking my hands in gratitude and telling me I was the best human ever. He could go on and on. I was glad I decided to upgrade his chip implant. No one can make me laugh like Poppy!
Back to work, where I again entered the firm’s disco-chamber. By now the rest of my team had sample searched and categorized over half of the likely relevant documents and most of the privileged documents. The secret privileged clumps of data were streaming around with the usual red colorations. I started to see a few orange segments too, and wondered what that was about. Orange, of course, was the color of work-product protected ESI. I had not seen any of those for a while and wondered if maybe someone was screwing up. That happened all too often, even in my new firm. So I linked into Spender’s stream, who was in charge of confidentiality compliance, and asked him about it.
Two hours later I began to understand the complexities of the orange streams and pools of data, and the arcane Chinese and Martian laws involved that still allowed for some work product protection, even in the Hague. Who knew? I had thought work product protection for written information, which we still called ESI out of tradition, even though most of it was not really electronic any more in the original sense of the word, had been eliminated entirely in the Hague. I was wrong. Even though work product protection for ESI was gone in Silicon Valley courts, it still was allowed here for certain kinds and forms of lawyer thoughts and writings.
The only work-product protection we lawyers still seemed to have in all courts these days was absolute immunity from the mind-probes. Thank God for that. The Vulcan-chambers we called them, could be a pretty horrific places for witnesses in deposition, especially the slimy ones who try to lie. But apparently certain kinds of lawyer ESI can still be withheld in this court, so we had a special team working on that now.
Total Sensory Disco-Chambers
I went back into the disco-chamber with renewed understanding of what I was sensing. I was starting to make sense of the interplay of the red and orange document flows against the rapid backdrop of ever-shifting blue, white, gray, and black pools. It looked like a fractal kaleidoscope, on all sensory levels. I had no idea what I was experiencing when I started the disco-chamber search, but now it was starting to fall into place.
You’ve got to jump off cliffs and build your wings on the way down.
At first the sounds created by the orange writings had been discordant. But now that I understood the law, they were starting to harmonize in my head. I was starting to grasp the kinds and types of chemical, electronic, and quantum writings that we were dealing with here. Even the few paper documents were starting to make sense. I was getting a pretty good idea of the probative values and matrix with admissible evidence and competing stories.
Although I was starting to make sense of what I was seeing, hearing, and touching, it still did not smell right. Maybe it was because I had disengaged the taste receptors. I was not sure. I did not like that kind of new input. In my opinion, they were all for show. The scientist types at KO were still trying to get the bugs out of that new feature, so I always turned it off. The four senses were tiring enough, and gave me more than enough information to analyze.
After a few more hours of total immersion and some, only slightly drug enhanced active mentation, I was well on my way to creating a new search protocol. It would be the first of its kind, a unique protocol tailored especially for the mock-docs we were given here, and the kind of Google ESI we were experiencing from these 9,048 employees. What a group they were turning out to be! I can’t believe how much they talked about sex in their supposed business communications. You never see that in lawyer ESI.
Bottom Line Driven Review
I glanced at the metrics screens and focused on the master project billing clock. The team was now approaching the two-thousand hour mark. We had better be nearing probability transition soon, if we were going to stay within budget. Not only that, there were only a few hours left in all time zones to complete work and meet the 48 hour production deadline those haughty Hague judges had imposed.
I know they were hoping we would plead for an extension, but I had my pride. The first request for an additional 48 hours was automatically granted (if timely filed before the midnight deadline). But still, I did not want to beg their indulgence. Maybe that is what everyone else did with their crazy short production deadlines, but I wanted to make a good first impression.
All my other projects had prepared me for this moment, I was going to make 100% recall, and 99% precision, and file briefs explaining why 99% was still legally acceptable. And I was going to do it on time. I’d show them what the Senior C&B Discovery Associate could do. I was damn well not going to bring in the discovery partner supposedly in charge of this project and ask for her help or permission to move for more time.
I had been checking in with the brief writers and they were all set to go. They had even found Hague ICCJ law to support my positions on probability and sampling. They had left a blank space in the memos for the predicted percentages on precision and recall. They told me that I had a 95% probability that my position would be accepted, even by this panel, if the panel’s tests showed I met my goal of 100% recall and 99% precision. Since the latest metrics showed about 20 exabytes of the 48.5 collected were likely to be produced, that meant a 99% precision rate in the production would only produce 200,000,000,000,000,000 (1% of 20,000,000,000,000,000,000) irrelevant documents to review. Surely the judges and their staff could live with that small number of false positives?
Our legal memo team was also telling me that if the recall rate was less than perfect, our chances to prevail on the legal position would be significantly diminished. If my search ended up finding anything less that 98% recall or 98% precision, the precedent and judicial temperament analysis suggested that our motions would be denied and the production rejected. Talk about pressure!
Meeting With The Discovery Partner
I was just getting ready to leave the chamber and call Poppy over and take another break when Poppy started to bark unexpectedly. Then the worst happened, Leonora Holmes, the legendary senior partner in charge, just jumps into the disco-chamber with me. No appointment, no advance warning, nothing. She is just suddenly there in all her glory. She was the only one who could do that of course, a privilege I envied and hoped to have myself one day.
Even though she looked like she was fresh from a yoga class, the grilling began immediately, or as she likes to call it, the dialogue. These old-school Sedona types were all alike. They never argued, but they sure could dialogue you to death. Me, I preferred the younger IT Lex type partners. They had a sense of humor.
Leonora demanded an explanation of the orange streams, which, thank God, I was ready to explain. Then she sat perfectly still in the chamber for a long time, taking it all in. Finally she says, just matter of fact, without a touch of praise, that it might work, my protocol designs might be good enough to attain the 100%/99% goal. But, she was not satisfied with the probability ratios.
Leonora reminded me of what the brief writers had said (obviously she had dialogued with them first), that if the production dipped below 98%/98%, we would likely be faced with a dreaded re-do scenario. She pointed out that the fee agreement with Google required the firm to absorb losses in a situation like that. As if I didn’t already know! Why did she think I was still here this late, and going dangerously beyond the recommended break time limits?
Leonora said the protocol I had set up just didn’t smell right to her (her speciality). It looked ok, at least after I explained the orange work product anomalies, but she still didn’t feel like it was a perfect set-up. Unfortunately, after she pointed out a few technical things to me, I had to agree. We were close, but this was not a game of horse-shoes, and I knew that a redo would mean a stock reduction for sure. With all the African shorting going on, I could not afford that.
Then she finally noticed that I had disconnected the taste inputs to KO’s latest Totalview software platform and asked why. Leonora did not like my answer, although she never used taste either. She agreed with me that the last version was still too complex and buggy. But she insisted we should have the KO scientists in there with us to work it out. Amazingly, she was able to make that happen in two minutes. I would have waited hours. I guess she was good to have around after all.
The barely intelligible multiple PhD types then began phasing in and out and adjusting things, and started their overly long-winded probability taste explanations. The senior partner was starting to get bored, I could tell. Leonora suddenly remembered another appointment.
Before she disappears she tells me I had better get this last input going or the search would never work. Very encouraging. She reminded me that I would be working all next week on the redo without her help.
The damn partners never like to get involved in unbillables. Who could blame them? I wanted to be a partner too, in a bad way. You did not make that much more money, or stocks, or whatever, but the perks were great. If I could just make some legal search history here, and a few more cases like this, I could fast track my way to partnership. Otherwise, the fifteen year standard seemed a long way off.
Final Deep Dive Into Total Sensory Search
I went back to work, shooed the scientists away, dropped another pill, and took a deep dive into total, five-sense immersion. At first, it all just left a bad taste in my mouth, but after what seemed like an eternity, which the damn physicists will tell you technically actually was an eternity, whatever, I finally started to make sense of it all.
Stuff your eyes with wonder, live as if you’d drop dead in ten seconds. See the world. It’s more fantastic than any dream made or paid for in factories.
I spotted some pockets of dark gray ESI and then confirmed their relevance. No one had noticed those records before. I also began to hear some new discord representing possibly irrelevant pockets. Again, a personal visit verified irrelevance. I was close to a breakthrough, but the metric indicators showed I still was not there yet. I had to keep going, but no worries, I still had over four hours left to the deadline, and KO could make a multi-exabyte production within twenty minutes of my certification. All they had to do was Losey Hash the docs and laser file them with the court.
Then all of a sudden alarms started going off! I was coming down and about to be forcibly ejected from the disco chamber. I wondered for a second what was happening, then my training kicked in. This was the firm’s safety protocol. I had been in too long, and was about to be forced into a thirty-minute relaxation break. As a senior associate I had the authority to override and keep going. But I knew better. I’d be grilled about that decision later for sure, maybe even forced into therapy. So I stepped out, called Poppy and took a break.
I came back in refreshed and suddenly started to see new patterns, new probabilities. The Schrödinger magic, I call it, was starting to kick into overdrive.
I knew I had it now. The metric indicators confirmed my intuition. The objective real-world time indicators said I still even had an hour to spare. The billing indicators showed I was under budget. All was good. So I just looked around for a while and made a few more little tweaks. This was going to be the best damn ESI production the Law had ever seen. I pushed the certification button and let KO take over. It was late and Poppy and I jumped home immediately.
The gift of life is so precious
that we should feel an obligation
to pay back the universe
for the gift of being alive