Good New 33-Point e-Discovery Checklist From Miami

October 1, 2017

The United States District Court for the Southern District Court of Florida is now revising it’s Local Rule 16.1 on Pretrial Procedure in Civil Actions. (In the interests of full disclosure, I am a member of that Court, but am not on the Committee that prepared the proposed revisions.) The revisions pertain to Rule 16.1(b),  Scheduling Conference and Order. The amendments will go into effect on December 1, 2017. These amendments include an excellent new 33-point e-discovery checklist.

The main revision in the local rules is the addition of a new subsection (K) under 16.1(b)(2) Conference Report that lists what must be included in the attorneys’ report:

(K) any issues about: (i) disclosure, discovery, or preservation of electronically stored information, including the form or forms in which it should be produced; (ii) claims of privilege or of protection as trial-preparation materials, including — if the parties agree on a procedure to assert those claims after production — whether to ask the court to include their agreement in an order under Federal Rule of Evidence 502: and (iii) when the parties have agreed to use the ESI Checklist available on the Court’s website (www.flsd.uscourts.gov), matters enumerated on the ESI Checklist;

This rule revision and checklist are a fine addition to the local rules. My congratulations to the ad hoc committee that prepared them. My only criticism of the rule change is that it does not go far enough on Federal Rule of Evidence 502. A 502(d) order should be entered in every case where there is a production of ESI. It should be a standing order and follow the standard language used by Judge Andrew Peck and many others, including my law firm:

1. The production of privileged or work-product protected documents, electronically stored information (“ESI”) or information, whether inadvertent or otherwise, is not a waiver of the privilege or protection from discovery in this case or in any other federal or state proceeding. This Order shall be interpreted to provide the maximum protection allowed by Federal Rule of Evidence 502(d).
2. Nothing contained herein is intended to or shall serve to limit a party’s right to conduct a review of documents, ESI or information (including metadata) for relevance, responsiveness and/or segregation of privileged and/or protected information before production.

My only criticism of the ESI Checklist itself in their use of vague bullet-points, instead of numbering. With that one exception, other courts around the country should consider using the 33-point ESI Checklist for their own local rules. Many already have their own similar checklists, of course, but this is the latest and one of the best. It is complete, but not overly long and complicated.

Checklist Use Is Discretionary

The first thing to note about this new local rule 16.1(b)(2)(K) is that it does not require attorneys to use or follow the ESI Checklist in their discovery plan discussions. Perhaps future versions of the rule will require its use, but I agree with the Ad Hoc Committee’s thinking here to start with discretionary use. There are still plenty of Milton-type lawyers in Florida, and elsewhere, who only think of discovery as near-endless mind-numbing exercises of looking at boxes of paper. IMO there are way too many of these guys, young and old, but the clients who retain attorneys seem to love them, so what can you do? They do often seem to win at the end, as all Office Space fans know. I knew a multi-zillionairre attorney in Miami once where you had to clear a path through all of the paper in his office just to walk to his desk.

If, however, the parties are cool and do agree to use the ESI Checklist, then they are required by the new local rule to include the Checklist points in their Conference Report. It is unclear whether they must include all 33-items in their Report, which, by the way, is supposed to be a Joint Report, but I predict that most will. The Checklist does, however, include the introductory sentence that justifies partial use: “The usefulness of any particular topic may depend on the nature and complexity of the matter.

I also predict that some judges will strongly encourage the use of the Checklist, the way that only judges can do. It may even become an Order when the failure to do so causes time-consuming disputes and other issues that could have been avoided by timely discussion of the checklist points. In most complex cases especially, attorneys would be well advised to agree to this list and not hide their head in the sands of wishful thinking. Better to be realistic and spend the time necessary for the proper use of the ESI List. The List is an excellent way to timely and efficiently comply with the rules.

Preparing for 26(f) conferences and talking about all of the items on the list may increase the costs somewhat upfront, but this expense will almost certainly cause substantial cost-savings dividends down the road. Attorneys and their clients should not be penny wise and pound foolish. You can have your cake and eat it too. Case preparation does not drive up the costs of litigation. It allows you to win, even in the close cases, or at least to mitigate damages. The failure to prepare is not only a sure way to lose, but also to generate high fees from motion practice over discovery. Better to avoid and contain the disputes than to hope they will never happen. Hoping for the best, including incompetence by opposing counsel, is not what lawyers are paid to do.

ESI Checklist

This blog next will explore and make some comments on the 33-point checklist. I begin by reproduction below of the checklist itself in somewhat altered form. I have not revised any of the words in the checklist, but I have added numbers not found in the original to facilitate discussion (actually Roman Numeral letters). So it is fair to say my revisions are not of actual content, but of metadata only. I also add after each item a personal comment, put in parenthesis, italicized and in blue font, so as to be very clear on what is Losey and what is not.

If you want to see the original, bullet points and all,  the PDF version of the Checklist and Rules are published on the Court’s web. Go to the end of the document (currently pages 78-79) to find the ESI Checklist.

United States District Court
Southern District of Florida

Checklist for Rule 26(f) Conference
Regarding Electronically Stored Information (“ESI”)
(Original Bullet Points Changed to Letters and Losey Comments put in parenthesis after each list item, are shown in italics and blue font)

In connection with the Federal Rule of Civil Procedure 26(f) conference and in preparing the Local Rule 16.1(b)(2) conference report, the Court encourages the use of the following checklist. The usefulness of any particular topic may depend on the nature and complexity of the matter.

I. Preservation

A. The ranges of creation or receipt dates for any ESI to be preserved. (In almost every case there is a date before which the ESI is not relevant. In many there is also an after date. Disagreement between parties on date range should be resolved by phased discovery and reservation of rights to object after first phase is completed.)

B. The description of ESI from sources that are not reasonably accessible because of undue burden or cost and that will not be reviewed for responsiveness or produced, but that will be preserved in accordance with Federal Rule of Civil Procedure 26(b)(2)(B). (Backup ESI is  almost always so protected, unless it has the only copy of important information.)

C. The description of ESI from sources that: (a) the party believes could contain relevant information; but (b) has determined, under the proportionality factors, is not discoverable and should not be preserved. (The keyword here is “could.” Maybe it has relevant information, maybe it does not. Also important in determining discoverability under governing proportionaity rules is the “importance” of the information to material issues of fact in dispute. You must consider probative value. In my experience with big data most “merely relevant” information is a waste of time. There is too little probative value to most of it to even try to capture it all.)

D. Whether to continue any interdiction of any document-destruction program, such as ongoing erasures of e-mails, voicemails, and other electronically recorded material. (Typically the key custodians identified should have their email auto-delete functions turned off, and voice mail, but as to them only, not the whole enterprise. Plus, I cannot recall voice mail ever making a difference in a case. It typically has low probative value.)

E. The number and names or general job titles or descriptions of custodians for whom ESI will be preserved (e.g., “HR head,” “scientist,” “marketing manager”). (This is the broad list of key custodians. They are often divided in classes by probable importance of their ESI to the outcome of the case. Although all classes may be preserved, only the most important are actually reviewed, at least at first.)

F. The list of systems, if any, that contain ESI not associated with individual custodians and that will be preserved, such as enterprise databases. (A list not associated with custodians usually refers to department type servers where a number of people in the department could store documents, to document management systems, or to general databases, such as payroll.)

G. Any disputes related to scope or manner of preservation. (You should get these issues resolved asap. Typically you would want to preserve until the issue is resolved, unless the expense is too great or the other side’s position is too unreasonable. But even then you run some risk, and so quick adjudication on issues like this are important.)

II. Liaison

A. The identity of each party’s e-discovery liaison, who will be knowledgeable about and responsible for each party’s ESI. (I always like to see the role and name that I invented back in 2006 – “e-discovery liaison” – used by a court. One of my first e-Discovery “Liaisons” is now a U.S. Magistrate Judge in the Southern District, and a very good one at that, especially in e-discovery.)

III. Informal Discovery About Location and Types of Systems

A. Identification of systems from which discovery will be prioritized (e.g., e-mail, finance, HR systems). (Typically the communications between people, the contemporaneous writings, are the ESI with the highest probative value.)

B.  Descriptions and location of systems in which potentially discoverable information is stored. (Typically this means a description of all IT systems where relevant ESI might be stored, and not just the high value targets like communications. Document management systems and network drives might also be listed here.)

C.  How potentially discoverable information is stored. (This is a follow-up on the prior checklist item that describes how the ESI is stored. Usually it is stored manually at the discretion of listed custodians. They either save the documents or email or not. Where they save it may also be within their control. They may save it on personal thumb drives, or they may print it out to store. You have to interview the custodians to find out how they stored it. Sometimes the potentially discoverable information is stored automatically by other software systems, such as payroll systems, and sometimes the location is predetermined.)

D.  How discoverable information can be collected from systems and media in which it is stored. (Usually it is collected by copying. That needs to be done carefully so that metadata is not changed. Not hard to do, but IT expertise is usually required to do it correctly. Forensic collection is usually not necessary, especially collection of double-deleted files and unallocated space, as such ESI is usually protected under 26(b)(2)(B).)

IV. Proportionality and Costs

A.  The amount and nature of the claims being made by either party. (The monetary value should not be exaggerated by plaintiffs, but usually they feel the need to do so for posturing purposes and other reasons. Suggest this impediment be avoided by disclaimers and reservation of rights. Beyond amount issues, the “nature” of the claims should be carefully understood and discussed with an aim to identifying the actual disputed facts. Discovery should always be focused and have evidentiary value. It is never an end in itself, or at least should not be. Also, do not forget that subject matter discovery is no longer permitted under revised Rule 26(b)(1). It is now limited to claims and defenses that have actually been raised in the case.)

B.  The nature and scope of burdens associated with the proposed preservation and discovery of ESI. (Try to include actual monetary burden expected, usually with a range, but restrain the urge to exaggerate. Spend time to do this right and get into some detailed metrics. Consult an expert where necessary, but never b.s. the judge. They do not like that and will remember you.)

C.  The likely benefit of the proposed discovery. (The requesting party should spell it out. Fishing expeditions are not permitted. The old “reasonably calculated” jargon is gone from new Rule 26(b)(1), at least as a definition of scope, and that change voids a lot of case-law on the subject.)

D.  Costs that the parties will share to reduce overall discovery expenses, such as the use of a common electronic-discovery vendor or a shared document repository, or other cost saving measures. (In my experience this is very rare, Typically it only makes sense in very big cases and or between co-defendants or co-plaintiffs. There are usually too many confidentiality issues to share a vendor with opposing parties.)

E.  Limits on the scope of preservation or other cost-saving measures. (Cost savings should always be considered. This is required of all parties, attorneys and judges under the 2015 revision to Rule 1, FRCP. So too is “speedy” and “just.”)

F.  Whether there is relevant ESI that will not be preserved in accordance with Federal Rule of Civil Procedure 26(b)(1), requiring discovery to be proportionate to the needs of the case. (Typically the answer here is yes, or should be, and some discussion may be required. Preservation is required by law to be reasonable, not exhaustive or perfect. Reasonable means proportionate. Moreover, if ESI is not relevant under the proportionate definitions of revised Rule 26(b)(1) then it does not have to be preserved because only relevant ESI need be preserved.)

V. Search

A.  The search method(s), including specific words or phrases or other methodology, that will be used to identify discoverable ESI and filter out ESI that is not subject to discovery. (Please people, exchanging keywords should be just the beginning, not the whole process. It is only one of many possible search methods. Use the Hybrid Multimodal method, which all readers of my blog and books should know pretty well by now.)

B.  The quality-control method(s) the producing party will use to evaluate whether a production is missing relevant ESI or contains substantial amounts of irrelevant ESI. (The problem of missing relevant ESI is the problem of Recall, whereas the problem of too much irrelevant ESI is the problem of Precision, but also, to some extent, to the problem of duplication. All good electronic document review experts have a number of different quality control techniques to improve recall and precision. Not an expert? Then perhaps you should consult with one in your firm, or if you have none (pity), then ask your e-discovery vendor.)

VI. Phasing

A.  Whether it is appropriate to conduct discovery of ESI in phases. (Yes. It is a great way to resolve disagreements by postponing excessive demands for second or third phases. Chances are these other phases will not be necessary because all that is needed is produced in the first phase. Alternatively, the producing party might agree to them if the first production makes their necessity obvious.)

B.  Sources of ESI most likely to contain discoverable information and that will be included in the first phases of Federal Rule of Civil Procedure 34 document discovery. (Here is where the producing party lists what sources they will search, most often communication ESI such as Outlook Exchange email servers.)

C.  Sources of ESI less likely to contain discoverable information from which discovery will be postponed or not reviewed. (These are sources that are unlikely to have ESI with strong probative value, if any, but might. There may never be a need to review these sources. As a compromise where there is disagreement put these sources in a later phase. After the first phase is completed  it may not be necessary to look for more evidence in these secondary sources.)

D.  Custodians (by name or role) most likely to have discoverable information and whose ESI will be included in the first phases of document discovery. (Here is where you list the key custodians. In most lawsuits all you will ever need to search is the contents of the mailboxes of these key witnesses, the emails, attachments, calendar items, etc in their email system.)

E.  Custodians (by name or role) less likely to have discoverable information from whom discovery of ESI will be postponed or avoided. (These are secondary custodians that might possibly have important information, but it is less likely. Typically, if you cannot revolve disagreements on importance, you agree to postpone the disputed custodians to second phases.)

F.  The time period during which discoverable information was most likely to have been created or received. (Again, limit the review by timing and if you cannot agree, then postpone disputed additional times for second phases.)

VII. Production

A.  The formats in which structured ESI (database, collaboration sites, etc.) will be produced. (Typically database production is done by spreadsheet reports, or sometimes native. The person in charge of the structured ESI should know.)

B.  The formats in which unstructured ESI (e-mail, presentations, word processing, etc.) will be produced. (Producing parties should follow the requesting parties format request most of the time, except if they ask for paper production. Paper production is ridiculous and expensive for ESI. Otherwise format should not matter. It is, or should be, a non-issue.)

C.  The extent, if any, to which metadata will be produced and the fields of metadata to be produced. (A non-issue too. If metadata is part of the document, then produce it. Your vendor can give you a standard list.)

D.  The production format(s) that ensure(s) that any inherent searchability of ESI is not degraded when produced. (This is a must. In my court it can be sanctionable to change an electronic document so that it is no longer searchable.)

VIII. Privilege

A.  How any production of privileged or work-product protected information will be handled. (Of course you do not produce it, but you log it.)

B.  Whether the parties can agree on alternative ways to identify documents withheld on the grounds of privilege or work product to reduce the burdens of such identification. (Look for ways to streamline your privilege log. For instance, under other Southern District local rule you never have to log communications made after suit was filed.)

C.  Whether the parties will enter into a Federal Rule of Evidence 502(d) stipulation and order that addresses inadvertent or agreed production. (You should always have a 502(d) Order whenever you are making an electronic production. Mistakes happen and this is the closest thing we have in the law to a fail-safe. There is no valid reason to oppose this order. Clear enough for you?)

 

 

 

 


New Homework Added to the TAR Course and a New Video Added to AI-Ethics

September 3, 2017

We have added a homework assignment to Class Sixteen of the TAR Course. This is the next to last class in the course. Here we cover the eighth step of our eight-step routine, Phased Production. I share the full homework assignment below for those not yet familiar with our instructional methods, especially our take on homework. Learning is or should be a life-long process.

But before we get to that I want to share the new video added to the AI-Ethics.com web at the end of the Intro/Mission page. Here I articulate the opinion of many in the AI world that an interdisciplinary team approach is necessary for the creation of ethical codes to regulate artificial intelligence. This team approach has worked well for electronic discovery and Losey is convinced it will work for AI Law as well. AI Ethics is one of the most important issues facing humanity today. It is way too important for lawyers and government regulators alone. It is also way too important to leave to AI coders and professors to improvise on their own. We have to engage in true dialogue and collaborate.

______

Now back to the more mundane world of homework and learning the Team’s latest process for the application of machine learning to find evidence for trial. Here is the new homework assignment for Class Sixteen of the TAR Course.

____

Go on to the Seventeenth and last class, or pause to do this suggested “homework” assignment for further study and analysis.

SUPPLEMENTAL READING: It is important to have a good understanding of privilege and work-product protection. The basic U.S. Supreme Court case in this area is Hickman v. Taylor, 329 US 495 (1947). Another key case to know is Upjohn Co., v. U.S. 449 U.S. 383 (1981).  For an authoritative digest of case law on the subject with an e-discovery perspective, download and study The Sedona Conference Commentary on Protection of Privileged ESI 2015.pdf (Dec. 2015).

EXERCISES: Study Judge Andrew Peck’s form 502(d) order.  You can find it here. His form order started off as just two sentences, but he later added a third sentence at the end:

The production of privileged or work-product protected documents, electronically stored information (“ESI”) or information, whether inadvertent or otherwise, is not a waiver of the privilege or protection from discovery in this case or in any other federal or state proceeding. This Order shall be interpreted to provide the maximum protection allowed by Federal Rule of Evidence 502(d).
Nothing contained herein is intended to or shall serve to limit a party’s right to conduct a review of documents, ESI or information (including metadata) for relevance, responsiveness and/or segregation of privileged and/or protected information before production.

Do you know the purpose of this additional sentence? Why might someone oppose a 502(d) Order? What does that tell you about them? What does that tell the judge about them? My law firm has been opposed a few times, but we have never failed. Well, there was that one time, where both sides agreed, and the judge would not enter the stipulated order, saying it was not necessary, that he would anyway provide such protection. So, mission accomplished anyway.

Do you think it is overly hyper for us to recommend that a 502(d) Order be entered in every case where there is ESI review and production? Think that some cases are too small and too easy to bother with that? That it is o.k. to just have a claw-back agreement? Well take a look at this opinion and you may well change your mind. Irth Solutions, LLC v. Windstream Communications, LLC, (S.D. Ohio, E Div., 8/2/17). Do you think this was a fair decision? What do you think about the partner putting all of the blame on the senior associate (seven-year) for the mistaken production of privileged ESI? What do you think of the senior associate who in turn blamed the junior associate (two-year)? The opinion does not state who signed the Rule 26(g) response to the request to produce. Do you think that should matter? By the way, having been a partner in a law firm since at least 1984, I think this kind of blame-game behavior was reprehensible!

Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!

 


E-DISCOVERY IS OVER: The big problems of e-discovery have now all been solved. Crises Averted. The Law now has bigger fish to fry.

July 30, 2017

Congratulations!

We did it. We survived the technology tsunami. The time of great danger to Law and Justice from  e-Discovery challenges is now over. Whew! A toast of congratulations to one and all.

From here on it is just a matter of tweaking the principles and procedures that we have already created, plus never-ending education, a good thing, and politics, not good, but inevitable. The team approach of lawyers and engineers (vendors) working together has been proven effective, so have the new Rules and case law, and so too have the latest methods of legal search and document review.

I realize that many will be tempted to compare my view to that of a famous physicist in 1894 who declared:

There is nothing new to be discovered in physics now. All that remains is more and more precise measurement.

Lord Kelvin (1824-1907)

Then along came Einstein. Many attribute this humorously mistaken assertion to Lord Kelvin aka William Thomson, 1st Baron Kelvin. According to Quora, scholarship shows that it was probably said by the American physicist, Albert Michelson, behind the famous Michelson–Morley experiment on the speed of light.

Still, even mindful of the dangers of boasting, I still think that most of the really tough problems in electronic discovery have now been solved.

The time of great unknowns in e-discovery are past. The rules, principles, case law, procedures, software, methods, quality controls vendor services are now well-developed. All that remains is more and more precise measurement.

The Wild West days are way gone. Certainly new problems will arise and experiments will continue, but they will not be on the same level or intensity as before. They will be minor problems. They will likely be very similar to issues we have already addressed, just with exponential magnification or new twist and turns typical of the common law.

This is a tremendous accomplishment. The crises we all saw coming around the corner at the turn of the century has been averted. Remember how the entire legal profession was abuzz in emergency mode in 2005 because of the greats dangers and burdens of e-discovery?  Yes, thanks to the hard work and creativity of many people, the big problems have now been solved, especially the biggest problem of them all, finding the needles of relevance in cosmic-sized haystacks of irrelevant noise. TARcourse.com. We now know what is required to do e-discovery correctly. EDBP.com. We have the software and attorney methods needed to find the relevant evidence we need, no matter what the volume of information we are dealing with.

We have invented, implemented and perfected procedures than can be enhanced and altered as needed to accommodate the ever growing complexity and exponential growth. We expect that. There is no data too big to handle. If fact, the more data we have, the better our active machine learning systems get, like, for instance, predictive coding. What an incredible difference from the world we faced in e-discovery just five years ago.

This success was a team effort by thousands of people around the world, including a small core group who devoted their professional lives to solving these problems. My readers have been a part of this and you can pat yourself on the back too. The paradigm shift has been made. Maybe it was the Sedona vortexes?

Now that the tough parts of e-discovery are over, the rest of the ride is downhill. Some of my readers have already moved on. I will not retire, not just yet. I will keep up the work of e-discovery, even as I watch it transition to just teaching and politics. These activities have there own unique challenges too, even if they are not really all that impact-full in the big scheme of things. Plus, I find politics disgusting. You will see tons of dirty pool in our field soon. I cannot talk about it now. We have some renegades with authority who never solved an e-discovery problem in their life. Posers with power.

But what is that new turbulence I hear in the distance? It is a bizarre new sound with vibrations never experienced before. It lies far outside of well trodden paths and sounds both discordant and harmonious, sirens-like at the same time. It lies on the outer, cutting edges of law, science and technology. It sounds like a new, more profound Technology and Law challenge has emerged. It is the splashing of bigger fish to fry. I am hearing the eerie smarts sounds of AI. A music of both exuberance and fear, utopia or extinction.

The Biggest Challenge Today is the Ethics of Artificial Intelligence.

Following my own advice of the Hacker Way approach I have given this considerable thought lately. I have found an area that has far more serious challenges and dangers than e-discovery – the challenges of AI Ethics.

I think that my past hacks, my past experiences with law and technology, have prepared me to step-up to this last, really big hack, the creation of a code of ethics for AI. A code that will save humanity from a litany of possible ills arising out of AI’s inevitable leap to super-intelligence.  I have come to see that my work in the new area of AI Ethics could have a far greater impact than my current work with active machine learning and the discovery of evidence in legal proceedings. AI Ethics is the biggest problem that I see right now where I have some hand-on skills to contribute. AI Ethics is concerned with artificial intelligence, both special and general, and the need for ethical guidelines, including best practices, principles, laws and regulations.

This new direction has led to my latest hack, AI-Ethics.com. Here you will find 3,866 words, many of them quotes; 19 graphics, including a photo of Richard Braman; and 9 videos with several hours worth of content. You will find quotes and videos on AI Ethics from the top minds in the world, including:

  • Steven Hawking
  • Elon Musk
  • Bill Gates
  • Ray Kurzweil
  • Mark Zuckerberg
  • Sam Harris
  • Nick Bostrom
  • Oren Etzioni
  • 2017 Asilomar conference
  • Sam Altman
  • Susumu Hirano
  • Wendell Wallach

Please come visit at AI-Ethics.com. The next big thing. Lawyers are needed, as the web explains. I look forward to any recommendations you may have.

I have done the basic research for AI Ethics, at least the beginning big-picture research of the subject. The AI-Ethics.com website shares the information that had biggest impact for me personally. The web I hacked together also provides numerous links to resources where you can continue and customize your study.

I have been continuously improving the content since this started just over a week ago. This will continue as my study continues.

As you will see, a proposal has already emerged to have an International Conference in Florida on AI Ethics as early as 2018. We would assemble some of the top experts and concerned citizens from all walks of life. I hope especially to get Elon Musk to attend and will time the event to correspond with one of SpaceX’es many launches here. My vision for the conference is to facilitate dialogue with high-tech variations appropriate for the AI environment.

The Singularity of superintelligent AIs may come soon. We may live long enough to see it. When it does, we want a positive future to emerge, not a dystopia. Taking action now on AI ethics can help a positive future come to pass.

Here is one of many great videos on the subject of AI in general. This technology is really interesting. Kevin Kelly, the co-founder of Wired, does a good job of laying out some of its characteristics. Kelly takes an old-school approach and does not speak about superintelligence in an exponential sense.

 


Mark Zuckerberg and the Hacker Way: Be Open and Build Social Value (More New Videos Added to the TAR Course)

July 9, 2017

The two videos in this blog on the Hacker Way are also included in the Welcome page of the TAR Course. Other minor improvements were made this week to the Welcome and the First Class.

This article continues and completes the blog I wrote last week, Hacker Way: Focus on Impact, Be Fast, Be Bold. The Hacker Way as written out by Mark Zuckerberg contains five basic credos. Zuckerberg, Letter to Investors (1/31/12). We covered the first three last week: Impactful – Fast – Bold. This week we cover the last two: Open and Values. You can find them all together, and more, on the Welcome Page to the Tar Course, now with its own convenient address: TARcourse.com. Also see HackerWay.org.

Since Facebook now has over Two BILLION Members and its founder, Mark Zuckerberg is the subject of intense public scrutiny and admiration, you would think that more people would be talking about how he thinks. Mark set forth his ideas, his basic tech-view of life, which he called Hacker Way, when Facebook went public. He made it the central talking point in Facebook’s Letter to Investors (1/31/12). Yet, now, five and a half years later, I am still the only one who has written about it in depth, and the only one who keeps writing about. Why is that? Is everyone else lost in VR? Wake up fellow hackers. Share your insights. I cannot do this alone. Connections and community efforts are the whole point of Facebook. Or was it Twitter? I jest.

There are thousands of other humble hackers like me that know about the Hacker Way, both from theory and a lifetime of experience. Some of them must write too. Yet, so far, they have been silent. There must be many others who know what Mark is talking about, who know where he is coming from. It is not about criminal hackers stealing stuff, nor Russian espionage. It is about creating stuff using technology and code. It is about Continuous Improvements, Hands-On, Meritocratic and Code Winning Arguments. It is about being Bold, Fast and Focusing on Impact. It is about being Open and Building Social Value.

Many know the principles articulated by Mark, and know about other related hacker principles and practices. Yet the silence, aside from me, is deafening. Follow the Hacker Way and Be Open. Join with me in the discussion and analysis of the Hacker Way that Mark Zuckerberg set out. Don’t be afraid to break stuff by making mistakes in writing. Be bold and leave public comments below.

Mark, if you somehow read this, I would like to interview you on the Hacker Way and publish it here. The world needs to hear more from you.

I do not want to be a Zuckerberg fan boy, or anything like that, but he is already an important historical figure. His philosophy is bona fide. The success of Facebook and other hacker based companies proves this. The Hacker Way philosophy deserves much more attention than it has received. The academics are probably clueless, but there must be other hands-on computer geeks like me that can articulate this into words, and not just more products, more code (not that there is anything wrong with that). What Mark has expressed so far is just the barest Zen essence of Hacker Way. We need to go beyond mere information and share the knowledge, and live the wisdom. Be open.

We should not make Mark Zuckerberg into just another celebrity, another wonder-kid billionaire who made the cover of time magazine, which is what has happened so far. He deserves to be taken more seriously than that. Don’t just admire him. Listen to him.

After I wrote this, I found an new article by , Mark Zuckerberg shouldn’t be president, but he should be listened to (Salon, 7/9/17). He seems to echo my idea, but not really. Roza’s article pertained to history and politics and Zuckerberg’s idea on universal basic income as expressed in his commencement speech at Harvard in May 2017 where he said: “We should explore ideas like universal basic income to make sure that everyone has a cushion to try new ideas.” There was not a single word in Roza’s “listen to” article on Mark’s Hacker Way, and he did not really talk much about Zuckerberg either. For more on Zuckerberg’s basic income idea see Mark’s Facebook post on his trip to Alaska and that state’s basic income experiment dated July 5, 2017. This idea is impactful and bold, albeit not new, just like Zuckerberg’s articulation of the old idea of Hacker Way.

I am not trying to promote a Zuckerberg run for presidency (although I would certainly prefer him over our current mess). See: Lucinda Shen, You Can Now Donate to a Mark Zuckerberg for President Campaign (Fortune, May 24, 2017); Sonya Mann, If Mark Zuckerberg Ran America Like He Runs Facebook… (Inc. 5/30/17). Although not promoting Zuckerberg for President (not yet), I do think that his ideas are important, all of his ideas, especially those on philosophy that are near and dear to my heart, namely Hacker Way. Also see Zuckerberg’s February 2017 statement on Facebook, Building Global Community. This important Facebook post elaborates on the Social Value that Facebook is building.

I am not trying to make Mark into a philosopher-guru either. That is contrary to the Hacker Way, which is more like Zen than religion. To paraphrase an old Zen saying, if you meet Buddha on the road, run him over! We do not need more celebrities, more gurus. We need hackers that take action and talk. We need writers that really listen to Mark’s entire message and are bold and open enough to write about it.

What follows are videos of me talking about the fourth and fifth components of the Hacker Way (Be Open, Build Social Values) and how they apply to the Law, e-Discovery and TAR. Each video is hacked into two parts due to WordPress size limits. Also See: Losey, “The Hacker Way” – What the e-Discovery Industry Can Learn From Facebook’s Management Ethic (8/18/13); The Solution to Empty-Suits in the Board Room: The “Hacker Way” of ManagementPart One and Part Two (8/22/13); Losey’s LTN editorial, Vendor CEOs: Stop Being Empty Suits & Embrace the Hacker Way. You may also want to check out HackerLaw.org and HackerWay.org.

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Be Open

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Build Social Value

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By the way, it is interesting to note that the address of Facebook headquarters is: 1 Hacker Way, Menlo Park, 94025.

Also see: Catherine Clifford, How Mark Zuckerberg keeps Facebook’s 18,000+ employees innovating: ‘Is this going to destroy the company? If not, let them test it.’ (CNBC 6/5/17).

Please see my blog last week, Hacker Way: Focus on Impact, Be Fast, Be Bold, to see my videos and writings on the Hacker Way and the first three components: Impact, Bold and Fast. Also see HackerWay.org.


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