This new ten minute video on Hacker Way and Legal Practice Management was added to my Hacker Way and AI-Ethics pages this week. It explains how one led to another. It also provides more insight into why I think the major problems of e-discovery have now been solved, with a shout-out to all e-discovery vendors and the team approach of lawyers working with them. This interdisciplinary team approach is how we overcame e-discovery challenges and, if my theory is correct, will also allow us to meet the regulatory challenges surrounding artificial intelligence. Hopefully my video disclosures here will provide useful insights into how the Hacker Way management credo used by most high-tech companies can also be followed by lawyers.
I have spoken several times before concerning the Hacker Way philosophy. I have always focused on my work as a lawyer specializing in e-discovery. I have also included this philosophy in my teachings in this area of the law, including the use of AI in document review. See: the TAR Course;HackerWay.org and HackerLaw.org.
The video talk in this blog takes it outside of the legal community so it can have maximum impact. I think it is important for everyone to understand the credo behind Facebook and most other 21st Century software tech companies. No one else seems to be talking about it, or sharing the secret sauce behind their success. That is contrary to the fundamental Hacker principle of Openness, so, as an old Hacker myself, I am stepping in to fill the gap. That’s just what I do. (Stepping-In is discussed in Davenport and Kirby, Only Humans Need Apply,and by Dean Gonsowski,A Clear View or a Short Distance? AI and the Legal Industry, and A Changing World: Ralph Losey on “Stepping In” for e-Discovery. Also see: Losey, Lawyers’ Job Security in a Near Future World of AI,Part Two.)
Facebook’ corp headquarters photo with symbols added.
In this below eleven minute video I am taking this sharing and openness to the next step. Here I address the five principles and related ideas of the Hacker Way as applied to life in general, not just my legal specialties. Hope you find this provides some value to our fast evolving computer culture. Please leave some comments, either here or at my new Facebook site: HackerWay.org.
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If you have not already read Mark Zuckerberg’s original treatise on the Hacker Way, contained in his initial public offering Letter to Investors, I suggest you do so now. Also see my related ideas on history and social progress at Info→Knowledge→Wisdom.
The three videos in this blog on the Hacker Way are also included in the Welcome Page of the TAR Course.
The Hacker Way – often called the hacker ethic – has nothing to do with politics or criminal activities. It is the philosophy of the computer age. This credo has influenced many in the tech world, including the great Steve Jobs and Steve’s hacker friend, Steve Wozniak, the laughing Yoda of the Hacker Way. The Hacker approach is primarily known to software developers, but can apply to all kinds of work. Even a few lawyers know about the hacker work ethic and have been influenced by it.
The Hacker Way philosophy was described well by Mark Zuckerberg in his letter to investors for the initial public offering of Facebook:
The word `hacker’ has an unfairly negative connotation from being portrayed in the media as people who break into computers. In reality, hacking just means building something quickly or testing the boundaries of what can be done. Like most things, it can be used for good or bad, but the vast majority of hackers I’ve met tend to be idealistic people who want to have a positive impact on the world.
The Hacker Way is an approach to building that involves continuous improvement and iteration. Hackers believe that something can always be better, and that nothing is ever complete. They just have to go fix it — often in the face of people who say it’s impossible or are content with the status quo.
Hackers try to build the best services over the long term by quickly releasing and learning from smaller iterations rather than trying to get everything right all at once. To support this, we have built a testing framework that at any given time can try out thousands of versions of Facebook. We have the words `Done is better than perfect’ painted on our walls to remind ourselves to always keep shipping. . . .
Hacking is also an inherently hands-on and active discipline. Instead of debating for days whether a new idea is possible or what the best way to build something is, hackers would rather just prototype something and see what works. There’s a hacker mantra that you’ll hear a lot around Facebook offices: `Code wins arguments.’
Hacker culture is also extremely open and meritocratic. Hackers believe that the best idea and implementation should always win — not the person who is best at lobbying for an idea or the person who manages the most people.
Mark goes on to explain in his letter how the Hacker Way translates into the five core values of Facebook.
Focus on Impact
Move Fast
Be Bold
Be Open
Build Social Value
Focus on Impact
If we want to have the biggest impact, the best way to do this is to make sure we always focus on solving the most important problems. It sounds simple, but we think most companies do this poorly and waste a lot of time. We expect everyone at Facebook to be good at finding the biggest problems to work on.
Move Fast
Moving fast enables us to build more things and learn faster. However, as most companies grow, they slow down too much because they’re more afraid of making mistakes than they are of losing opportunities by moving too slowly. We have a saying: “Move fast and break things.” The idea is that if you never break anything, you’re probably not moving fast enough.
Be Bold
Building great things means taking risks. This can be scary and prevents most companies from doing the bold things they should. However, in a world that’s changing so quickly, you’re guaranteed to fail if you don’t take any risks. We have another saying: “The riskiest thing is to take no risks.” We encourage everyone to make bold decisions, even if that means being wrong some of the time.
Be Open
We believe that a more open world is a better world because people with more information can make better decisions and have a greater impact. That goes for running our company as well. We work hard to make sure everyone at Facebook has access to as much information as possible about every part of the company so they can make the best decisions and have the greatest impact.
Build Social Value
Once again, Facebook exists to make the world more open and connected, and not just to build a company. We expect everyone at Facebook to focus every day on how to build real value for the world in everything they do.
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Focus on Impact
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Move Fast
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Be Bold
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More on Impact
In e-discovery, like anything else, you have to focus and prioritize. You cannot do everything at once, at least not if you are going for impact. Scatter-brained is a recipe for failure. Any writer of appellate briefs will tell you that. Focus on the key issues if you want to persuade. Put aside the rest. You have to pick and choose your battles, your time, energy, and money. All tasks are not created equal. Some are more important than others.
For instance, in e-discovery look for the smoking guns first, the documents with the highest probative value. Check out the ESI of the key custodians first. Do phased discovery and start your search and production in the data sectors and custodians most likely to give you the biggest bang for your buck. Most of the time with phased production you never need to go beyond the first phase. The low hanging fruit you find up front is usually more than adequate to try the case in a just, speedy and inexpensive manner.
In all kinds of project management, not just discovery, you should focus first on the problems and issues that could have the biggest impact, and then move on to secondary problems. A business manager, just like a wise project manager in an e-discovery review, knows what to focus on and when. Empty suits in the board room lack this kind of focus and ability to prioritize. Perhaps they just do not understand what is important, and what is not. Maybe they are too preoccupied with next quarter’s profits to see the big picture.
Back to e-discovery, the big picture, from the highest elevation, shows that the core problems are the high costs of e-discovery and the low skills of practitioners in using new technologies. Vendors have addressed the cost issue since I last wrote on this back in 2013. I applaud the price cuts we have seen. But vendors had failed on teaching the correct methods for the use of their software. They are still stuck on version 1.0 and 2.0 Vendors, please make your experts get with the program. Have them take the TAR Course and modify your software to rub the latest methods.
More on Fast
Acting fast is second nature to most e-discovery experts by now. The 2006 Amendments to the Federal Rules of Civil Procedure put a premium on speed. We all know you have to work fast to get your act together before the initial 26(f) conference. You have to be prepared to discuss and disclose your e-discovery plan, including your preservation efforts and plan for search and review. Evolving case law on litigation holds also requires you to act fast, to send out written notices quickly, to collect key ESI quickly.
Obviously most search, review, and production projects also require you to act very fast to meet tight time deadlines. How many files per hour can your CAR go, your Computer Assisted Review? You have got to be fast to succeed in e-discovery. Yet, at the same time, you must act reasonably and minimize mistakes. This means that you must have quality control methods built into your CARs. You have to know when to double-check your efforts. There are straightaways in e-discovery where you can go fast, such as irrelevancy culling, and there are curves, such as privilege review. You have to know when and where to slow down so you don’t go flying off the curves.
Some analyses and conversations need to happen quickly, right at the beginning of a case. Determination of key players and key player interviews and preservation instructions come to mind. So to do conversations with IT to suspend automatic deletions and old computer recycling. So many things in e-discovery are front-loaded that all who practice in this field are used to this kind of time pressure. We know how to act fast, yet tempered, and not hurried. We expect the same from our vendors. Most of the project managers of vendors seem capable of acting fast, but, alas, not so most of the empty suits they report to.
Fast does not mean you abandon quality control or appropriate beta testing. Apparently Facebook itself has had to learn this lesson. See Facebook Puts the Brakes on ‘The Hacker Way’. The Wired article by Ryan Tate points out that since going public Facebook has started slowing down product releases:
It’s testing new tools more thoroughly prior to release and then parsing goodies out slowly to help smoke out even more problems. Facebook’s move toward greater testing is a sign of maturation at the company…
I agree this is a sign of maturation, but I do not agree with Ryan Tate that this means Facebook has put the brakes on the Hacker Way. Tate’s article misstates the Hacker Way as being built solely around the adage “move fast and break things.” But as Mark Zuckerberg’s Letter to Investors shows, that is only a small part of this new work ethic.
Moreover, I do not think Facebook has backed off, in fact the speed of product development after going public has increased dramatically. As Tate’s article admits:
In some regards, Facebook is moving faster than it ever has before. Since going public, it has launched a search engine, a mobile “operating system,” a camera app, a pages app, a “poke” app, an app store, an ad exchange, an online store, a gift card, a video sharing system, at least two major news feed updates, and plenty more. The teenaged Zuckerberg, in full hacker glory as a Harvard underclassman, would have approved of the breakneck product release pace.
Fast does not mean reckless. But the more skilled you become, the faster you can move and still remain safe, still remain within acceptable quality control parameters. Knowing just how fast you can go is an artifact of experience, of age, and it looks like Facebook is gaining that experience.
More on Bold
Who wants to hire a mousy lawyer? Nobody! Timid and lawyer are two words that should never go together. Yet for most AmLaw 100 law firms today, they do, at least when it comes to e-discovery. For a law firm to be bold, they need to do what my law firm did, and others have done. They need to hire outside attorneys who are already skilled, and they need to make a full commitment to these attorneys and what they bring to the table. The e-discovery experts should be provided with authority to make a real e-discovery team, not just design a marketing ploy. In that way law firms can keep improving and can build a truly effective law firm for the 21st Century.
If a law firm is satisfied with the status quo, they will not invest in e-discovery. They will be happy with their empty suits. That is, until the hacker led firms start to eat their lunch. Law firm management needs to be bold, to go all-in for e-discovery. They need to hire full time specialists. It does not work to simply ask a few lawyers in the firm to dabble part time.
Timid, halfway, band-aid measures do not work in any complex endeavor, including e-discovery. You have got to go either all-in, or all-out. The days of a law firm setting up a marketing type e-discovery department by sending out a few of its attorneys to CLEs, and then posturing them as experts, are long gone. It takes bold all-out efforts. Again, you need to look beyond this year’s profits to the long term viability of the firm.
[C]ontinue to be marketing groups more than anything else. I continue to see that most lawyers at firms with putative internal EDD practice groups either do not know those groups exist or do not use them. Firms ought to do a better job of taking control of EDD, at least for those clients who lack the wherewithal to take on EDD themselves. Firms seem unwilling, however, to make the initial and on-going investments needed for that to happen.
How many of the AmLaw 100 law firm’s have bona fide e-discovery practice groups? How many even have one lawyer who does nothing but e-discovery? That is the true litmus test for bold management, a test which most firm’s fail. It bears repeating: timid and lawyer are two words that were never meant to go together. Be bold law firm managers. Be a mighty mouse, not timid rat. Go all-in with e-discovery and insure the future prosperity of your firm.
As to vendors, you must also be bold, willing to take a chance, willing to lead, not just tag along with the changes sweeping the industry. Stop trying to milk your outdated products for all they are worth. Get rid of your old products instead of just adding a few minor enhancements each year. Shorten your new product cycles. Invest in research. Listen to your knowledgeable users. Made bold moves, big moves. Get rid of the empty suits in your boardroom. Go with bona fide hackers. And, as always, please get rid of the damn Control Sets in your predictive coding software methods. They are an ugly illusion, unlike the beautiful one below by Akiyoshi Kitaoka, a Professor of Psychology in Kyoto.
Civilization is being destroyed by misinformation and lies on the internet. A steady diet of phony facts is killing Lady Justice. She needs rules of evidence to survive, to weed out truth from lies. She needs help from those with knowledge and wisdom, not just those with money, greed and power. She also needs help from fair, unbiased artificial intelligence, for otherwise the volume of information is too vast to monitor. Rules of evidence for public discourse perhaps? Artificial intelligence cyberverse administrators with experts to monitor and judge? I don’t have the answers. Just a broad outline based on a life of experience with computers and online communities. Just a sense of foreboding about the dangers created during my early watch on the internet to today. To help make sense of the quandary we are now in, I draw upon the historical perspective of Information → Knowledge → Wisdom. This was articulated in my blogs in 2015 and 2016. I made predictions then on how the internet age of personal computers would turn out. Spoiler alert, I saw some dangers, but missed how fast they would approach, missed the severity of the threats.
Read on to hear my rant, which, much like the scientists in Don’t Look Up, scream about the dangers ahead. Mock me if you will, even worse, ignore these warnings. But, as frustrating as this may be, I have got to try. Mere information, often misinformation, without knowledge and wisdom, is a killer comet. It is a planet killer. These threats are real. It’s really happening. Look around you. Look up, but don’t give up.
Perspective from the “Information → Knowledge → Wisdom” Theory of Historical Progression of Society.
On April 5, 2015, I published: Information → Knowledge → Wisdom: Progression of Society in the Age of Computers. The blog started with a self-evident presumption: the personal computer revolution started by the Hacker elite in the 1970s, and the internet based digital age that followed, had completely transformed the world. I had high hopes this transformation was for the good. I have been an active participant, albeit minor, and an observer in this paradigm shift.
Steve Jobs and Steve Wozniak
My use of the word “hacker” in the 2015 article referred to the original meaning of hands-on computer experts, like the two Steves, Jobs and Wozniak. I am not referring to bad guy computer thieves, which most people now think of when they hear hacker. My blog affirmed that these early computer pioneers, including the likes of Gates, Page, Brin, Bezos, Musk and Zuckerberg, were hackers that changed the world. They helped usher in a new Internet personal computer Age of Information. The blog asserted that:
The first generation of hackers born in the fifties … have quickly changed our world into an information based society. . . . The first step – Information – is just a stepping stone to a more mature, Knowledge-based culture.
After extolling the many opportunities of a technology based shift to an information age, I also warned of the dangers of this paradigm shift. I suggested that society in general would be doomed, and justice in particular, which is my career, unless we quickly moved past an Information based society, into one based on genuine Knowledge and pursuit of Wisdom, the final goal. Here are a few highlights:
The spike and distribution of online information is just a first major consequence of the New Age of Computation. It will not be the last. The focus on information alone will soon change, indeed, must soon change. The information explosion is nowhere near the final goal. Information alone is dangerous and superficial. Our very survival as a society depends on our quick transition to the next stage of a computer culture, one where Knowledge is the focus, not Information. We must now quickly evolve from shallow, merely informed people with short attention spans, and superficial, easily manipulated insights, to thoughtful, knowledgeable people. Then ultimately, some day, we must evolve to become truly wise people.
I wish now, seven years later, that the warnings had been even more strident. I did not realize how fragile society was to the influence of lies and propaganda. I did not foresee how quickly society could devolve and justice lost in clouds of confusion.
Benchmark Predictions to Test the Information → Knowledge → Wisdom Hypothesis
To provide a benchmark for the accuracy of this Information → Knowledge → Wisdom hypothesis, I made twelve fairly specific predictions in April 2015. My hedge is that these predictions are five to twenty years out, i.w. – from 2020 to 2035. Although I missed the intensity of the downside, overall I think the predictions have panned out pretty well. You be the judge. Here are summaries of the twelve predictions, see the original essay for full descriptions.
First Prediction. The Metaverse will be created, or as I put it then, the creation of many new types of cyber and physical interconnectivity environments . . . The new multidimensional, holographic, 3D, virtual realities will use wearables of all kinds . . .” This prediction is obviously coming true. Zuckerberg even renamed his company accordingly.
Second. “Some of the new types of social media sites will be environments where subject matter experts (SME) are featured, avatars and real, cyber and in-person, shifted and real-time.” Again, now obvious, although the “in-person”aspects have been slowed by Covid while the online accelerated.
Third.The new SME environment will include products and services, with both free and billed aspects. Again, obvious, with pandemic based slow-down on in-person aspects and overall, still a long way to go to counter all of the misinformation and outright lies.
Fourth.The knowledge nest environments will be both online and in-person. Again, same comment.
Fifth. The knowledge focused cyberspaces, both those with and without actual real-words SMEs, will look and feel something like a good social media site of today, but with multimedia of various kinds. This is coming true.
Sixth.“The admins, operators and other staff in these cyberspaces will be advanced AI, like cyber-robots. Humans will still be involved too, but will delegate where appropriate, which will be most of the time. This is one of my key predictions.” I quoted this sixth prediction in full. It is disappointing that this is still in an early stage of actualization. But I stand by the optimism that it will be realized by no later than 2035. If not, society and justice as a living ideal may be lost. Humans need the help of advanced and objective AI. We are obviously too immature and F’ed up to go it alone with all of this technology at our fingertips. Without AI’s help, we are likely to destroy ourselves before we become an interplanetary species with increased odds of survival.
Seventh. “The presence of AIs will spread and become ubiquitous.” Again, this prediction is a work in progress, there is AI of sorts everywhere, including your refrigerator as predicted, but it’s not that smart. Just try this and hear for yourself: Hey Google, how smart are you?
Eighth. The eighth prediction is kind of fun, so I will quote in full, but this is still in the early stages. By 2035 it will be full blown, that is, if we survive that long: “The knowledge products and services will come in a number of different forms, many of which do not exist in the present time (2015), but will be made possible by other new inventions, especially in the area of communications, medical implants, brain-mind research, wearables, and multidimensional video games and conferences.“
Ninth. The first part of the ninth prediction is, again, starting to come true for cyber learning, but is still a work in progress: “All subject areas will be covered, somewhat like Wikipedia, but with super-intelligent cyber robots to test, validate and edit each area.“
Tenth. The tenth prediction is really important and so I quote it here in full. The very survival of democracies and justice may well depend on this. “The AI admins will monitor, analyze, and screen out alleged SMEs who do not meet certain quality standards. The AI admins will thus serve as a truth screen and quality assurance. An SME’s continued participation in an AI certified site will be like a Good Housekeeping Seal of Approval.” This has not yet happened, although we have recently begun seeing early signs of it. The fix needs to happen now and FAST. Mark Zuckerberg, Elon Musk, others, are you listening? The internet has been broken by a web of lies with no rules of evidence. The best way out seems to be the use of objective, ethical AI. Stop wasting AI to sell us more stuff. Use it to help us save ourselves from propaganda, to help us to move into a knowledge and wisdom based society.
Eleventh. Same comment as to our hopes of survival applies to the eleventh prediction. “The AI admins will also monitor and police the SME services and opinions for fraud and other unacceptable use, and for general cybersecurity.“
Twelfth. The last 12th prediction is an optimistic vision of the AI guided cyber-knowledge-nests predicted to save us from misinformation and fraud, but I still have hopes for its realization by 2035. ” … They will provide a comforting alternative to information overload environments filled with conflicting information, including its lowest form, data. These alternative knowledge nests will become a refuge of music in a sea of noise. Some will become next generation Disney World vacation paradises.“
Examining the Twelve Predictions in 2016
I examined these twelve hypothesis-testing predictions a year after I made them in How The 12 Predictions Are Doing That We Made In “Information → Knowledge → Wisdom.” In this essay you can find more depth on this theory and twelve predictions. Although overall, in early 2016, I was still optimistic, as the next video shows, still, I warned that:
The transition from mere Information to Knowledge is seen as a necessary survival step for society, not an idealistic dream. … We remain hopeful that artificial intelligence will help usher in a Golden Age of Knowledge, then ultimately of Wisdom. This is not to deny the possibility of dark futures with human subjugation by robot overlords or all-too-human political despots, etc. In order to avoid these dystopias we need to know and understand the real dangers we are now facing, including, without limitation, AI, and act accordingly.
Unfortunately, the events since that last blog have underscored the danger, the very real terror, of misinformation and lack of knowledge. We have seen how quickly the information age can destroy society. The transition into a knowledge based age is now an urgent need of everyone. Back in 2016, my focus was more optimistic and education based.
To try to show the difference between the three levels, information – knowledge – wisdom, I illustrated with a down to earth example. I asked who you would rather talk to, an informed, knowledgeable or wise person? I hoped this would encourage people to move beyond information based culture into knowledge and wisdom.
Ralph Losey in 2016
Things have changed a lot since 2016 when I made that video. Then I had expected more wise women and men to emerge and take action on the world stage. Instead, we have seen the opposite; fewer wise people and many more fools than I had ever dreamed possible. The wisest I have seen lately is a Ukrainian law school graduate, turned comedian, turned statesman, Volodymyr Zelenskyy, who said:
Let’s build a country of opportunities, where everybody is equal before the law and where the rules of the game are honest and transparent, and the same for everyone.
People don’t really believe in words. Or rather, people believe in words only for a stretch of time. Then they start to look for action.
We will fight to the end. We will not give up and we will not lose.
My Other Blogs on ‘Information → Knowledge → Wisdom’
The first Information stage of the post-computer society in which we live is obviously chaotic. It is like the disconnected numbers that lie completely outside of the Mandelbrot set. It is pure information with only haphazard meaning. It is often just misinformation. Just exponential. There is an overwhelming deluge of such raw information, raw data, that spirals off into an infinity of dead-ends. It leads no where and is disconnected. The information is useless. You may be informed, but to no end. That is modern life in the post-PC era.
From trillions to a handful, from mere information to practical wisdom — that is the challenge of our culture today. On a recursive self-similar level, that is also the challenge of justice in the Information Age, the challenge of e-discovery. How to meet the challenges? How to self-organize from out of the chaos of too much information? The answer is iterative, cooperative, interactive, interdisciplinary team processes that employ advanced hybrid, multimodal technologies and sound human judgment. . . .
The challenge of Culture, including Law and Justice in our Information Age, is to never lose sight of this fundamental truth, this fundamental pattern: Information → Knowledge → Wisdom. If we do, we will get lost in the details. We will drown in a flood of meaningless information. Either that, or we will progress, but not far enough. We will become lost in knowledge and suffer paralysis by analysis. We will know too much, know everything, except what to do. Yes or No. Binary action. The tree may fall, but we never hear it, so neither does the judge or jury. The power of the truth is denied. . . .
Meaning is the whole point of Information. Justice is whole point of the Law.
Conclusion
Looking back on my writings, I stand by the usefulness of the Information → Knowledge → Wisdom construct as a tool for understanding the rapid changes in society. But, looking back seven years, I see my warnings of danger were too soft. In 2015, I could, like many, envision the dangers of an Information Age, but I did not realize the gravity of the situation. Nor did I foresee how quickly our society could degrade. I did not realize how fast misinformation and lies could spread to a gullible public and destroy the very fabric of civilization. Also, I thought AI would develop faster and be used for the common good to help push us into knowledge and wisdom.
We need better evidence tests of information, and quickly, to weed out the lies. Rules of evidence for public discourse perhaps? Better use of AI? I see what a terrible mess we are now in with democracies threatened everywhere. But I still have hope. Based on my hands-on work with AI in evidence since 2012, I sense that artificial intelligence can help us out of this mess.
We are now in a dangerous transition age. A time where our AI is still pretty stupid and focused on surveillance and sales. A time where anyone can claim to be an expert, to have knowledge and wisdom, when they have none. An age where there is no reasonable cross-examination and almost no polite society. An age where there are constant lies, rude confrontations, screaming and violence. Where is ethics? Morality? Shared values of common decency and fair dealing?
Ralph Losey 2022 – Look Up!
So now, much like the scientists heroes in Don’t Look Up, I am screaming about the dangers as loud as an old trial lawyer, blogger can. Misinformation, without knowledge and wisdom, is a killer comet that could destroy our civilization, and, by secondary environmental damage, could destroy all life on Earth. It is a planet killer. These threats are real. It’s really happening. Look around you. Look up, but don’t give up.
Justice has always been an elusive ideal, a quest based on evidence based truth, rules of admissibility and social values. In 2015, I was seeing progress in justice. I thought AI would advance more quickly than it has. Now, I am not sure how we can get through this. I see regression. I see democracies everywhere on edge, justice severely challenged and the rise of “strong-man” dictatorships. The threats are real. This is really happening.
In 2015, I had more hope for the future than I do today. But, to share the pep talk I give myself regularly, we must never give up. We must make that struggle for the sake of future generations, our children, grandchildren and beyond. To quote Zellensky again, “We will fight to the end. We will not give up and we will not lose.” We must continue to fight for truth, genuine knowledge and wisdom. We cannot go willingly into the dark night of misinformation and lies. These are not dreamy ideals, these are species survival imperatives. These threats are real. It’s really happening. We must not lose.
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Ralph Losey is an Arbitrator, Special Master, Mediator of Computer Law Disputes and Practicing Attorney, partner in LOSEY PLLC. Losey is a high tech law firm with three Loseys and a bunch of other cool lawyers. We handle projects, deals, IP of all kinds all over the world, plus litigation all over the U.S. For more details of Ralph's background, Click Here
All opinions expressed here are his own, and not those of his firm or clients. No legal advice is provided on this web and should not be construed as such.
Ralph has long been a leader of the world's tech lawyers. He has presented at hundreds of legal conferences and CLEs around the world. Ralph has written over two million words on e-discovery and tech-law subjects, including seven books.
Ralph has been involved with computers, software, legal hacking and the law since 1980. Ralph has the highest peer AV rating as a lawyer and was selected as a Best Lawyer in America in four categories: Commercial Litigation; E-Discovery and Information Management Law; Information Technology Law; and, Employment Law - Management.
Ralph is the proud father of two children, Eva Losey Grossman, and Adam Losey, a lawyer with incredible cyber expertise (married to another cyber expert lawyer, Catherine Losey), and best of all, husband since 1973 to Molly Friedman Losey, a mental health counselor in Winter Park.
1. Electronically stored information is generally subject to the same preservation and discovery requirements as other relevant information.
2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
3. As soon as practicable, parties should confer and seek to reach agreement regarding the preservation and production of electronically stored information.
4. Discovery requests for electronically stored information should be as specific as possible; responses and objections to discovery should disclose the scope and limits of the production.
5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that is expected to be relevant to claims or defenses in reasonably anticipated or pending litigation. However, it is unreasonable to expect parties to take every conceivable step or disproportionate steps to preserve each instance of relevant electronically stored information.
6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.
8. The primary source of electronically stored information to be preserved and produced should be those readily accessible in the ordinary course. Only when electronically stored information is not available through such primary sources should parties move down a continuum of less accessible sources until the information requested to be preserved or produced is no longer proportional.
9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.
10. Parties should take reasonable steps to safeguard electronically stored information, the disclosure or dissemination of which is subject to privileges, work product protections, privacy obligations, or other legally enforceable restrictions.
11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using technology and processes, such as data sampling, searching, or the use of selection criteria.
12. The production of electronically stored information should be made in the form or forms in which it is ordinarily maintained or in a that is reasonably usable given the nature of the electronically stored information and the proportional needs of the case.
13. The costs of preserving and producing relevant and proportionate electronically stored information ordinarily should be borne by the responding party.
14. The breach of a duty to preserve electronically stored information may be addressed by remedial measures, sanctions, or both: remedial measures are appropriate to cure prejudice; sanctions are appropriate only if a party acted with intent to deprive another party of the use of relevant electronically stored information.