Richard Braman (1953-2014) founded The Sedona Conference® in 1997. Before that he was a top litigator in San Francisco and Minneapolis where he also owned and operated a jazz club, Gabriel’s. For that reason, I feel certain he would smile at this essay using jazz images to describe the essence of the Sedona Principles that he loved so dearly.
Article written by Open AI’s ChatGPT with all-too-human prompt engineering by Ralph Losey. Hat’s off to ChatGPT-Plus for the excellent jazz-based images and writing. All images by Dall-E and Losey.
In the realm of electronic discovery, a certain rhythm permeates the airwaves, one that resonates with the pulse of jazz music. A harmonious interplay between those who seek information and those who hold it, creates an intriguing melody that’s both enchanting and demanding. The rules that govern this space are like the musical notes that make up a tune, essential to the experience of the listener, the same way that following the right protocol is essential to the seeker’s success.
In this jazz-infused world, the importance of electronic information is akin to the fundamental nature of a rhythm section in a jazz ensemble. Just as the bass, drums, and piano are integral to the musicality of jazz, electronic data is vital to modern life. Its significance is such that it must be carefully tended to, given the same consideration as any other kind of data.
When a seeker is searching for electronic data, they must adopt a musician’s mentality, avoiding excessive requests that sound like dissonant notes in a melody. Their goal should be to play a smooth tune, one that strikes the right chords, avoiding notes that don’t fit. Just as a jazz musician must be aware of their musical costs, a seeker must consider the expenses of pursuing information, keeping in mind the value of the information that is sought.
Just like a jazz band, those who seek and those who hold electronic data must work together in a harmonious exchange. A melody is only successful when everyone plays their part, just like a search for electronic data can only be accomplished with cooperation between parties. A clear and concise request from the seeker must be met with a reply that’s just as clear, like a musician playing a melody that’s understandable to their audience.
In this jazz world of electronic discovery, keeping data secure is like a trumpet player protecting their prized instrument. It’s the responsibility of the data owner to ensure that the data is safeguarded, but they don’t have to keep every single piece of data. Like a jazz musician who only keeps the essential notes to make a melody work, a data owner must protect what is necessary while disregarding what isn’t.
In the event of a dispute, it’s important to have proof, just like a jazz musician who has to demonstrate their musical chops on stage. To prove a point, it’s necessary to play the right notes, and in electronic discovery, it’s crucial to present the right data. The seeker should start by looking in the most accessible places, just like a musician who looks for the right melody in the most obvious places.
If data has been deleted or hard to find, it’s not essential to search for it unless there’s a good reason. Like a jazz musician who only plays what is necessary, the seeker must focus on what’s important to the case at hand. Privacy is another significant concern in this world, like a jazz musician who has to play with a level of restraint to maintain their musical dignity.
In the world of electronic discovery, there are tools that are available to aid in the search for data, just like a jazz musician who uses instruments to create their musical sound. These tools are designed to simplify the process and streamline it, much like a musician who uses new technology to create new sounds.
When data is shared, it should be presented in a way that’s easily understood, like a jazz musician who communicates their musical ideas to their listeners. The data owner is responsible for paying for the safekeeping and sharing of the data, much like a jazz promoter who takes care of the musical instruments and ensures that the performance runs smoothly.
In conclusion, the world of electronic discovery is like a jazz composition, with each player fulfilling a vital role. The right notes, played at the right time, create a melody that’s pleasing to the ears. Similarly, following the right protocols and rules in electronic discovery ensures a successful outcome. Like a jazz musician who respects the music and the other musicians on stage, those who seek and those who hold electronic data must work together with respect and integrity. Only then can the music of electronic discovery be played in perfect harmony, creating a beautiful sound that’s worthy of applause.
Article and Illustrations Written by GPT-3 as Generated by Human Attorney, Ralph Losey
GPT-3 (Generative Pre-trained Transformer 3) is a state-of-the-art natural language processing (NLP) model developed by OpenAI. It is trained on a massive dataset of over 8 billion words. This training allows it to generate human-like text that can be used for various language-based tasks, such as language translation, summarization, question answering (and writing this blog).
GPT-3 could be used in the legal field in the process of electronic discovery. E-discovery refers to the process of identifying, collecting, and producing electronically stored information (ESI) in response to a request for production in a legal case.
Here are examples of how GPT-3 could potentially be used in e-discovery:
Document review: GPT-3 could be used to review and classify large volumes of ESI, such as emails and documents, in order to identify relevant information and reduce the burden on human reviewers. AI systems can also be used to identify patterns and trends in data that might not be immediately apparent to human reviewers. For example, an AI system might be able to identify connections between different pieces of data, such as a common sender or recipient, or a particular keyword that appears repeatedly in a group of documents. This can help legal teams identify relevant information more quickly and efficiently, and potentially uncover new leads or evidence that might not have been discovered through manual review.
Predictive coding: GPT-3 could be used to assist with predictive coding, a process that uses machine learning algorithms to identify relevant ESI based on examples provided by human reviewers. By using AI to identify and prioritize relevant documents, legal teams can focus their efforts on the most important and relevant information, rather than having to review every document in a dataset.
Summarization: GPT-3 could be used to generate summaries of large volumes of ESI, making it easier for reviewers to quickly understand the content and identify relevant information.
Language translation: GPT-3 could be used to translate ESI from one language to another, allowing reviewers to more easily review and understand documents written in languages they may not be proficient in.
Question answering: GPT-3 could be used to assist with answering questions related to ESI, such as clarifying the meaning of certain terms or providing context for certain documents.
Legal research: GPT-3 can be used to quickly search through large volumes of legal documents, such as case law or statutes, and provide relevant information to lawyers.
Drafting legal documents: GPT-3 can be used to assist lawyers in drafting legal documents, such as contracts or pleadings, by suggesting language and providing relevant information.
Redaction. GPT-3 can help identify and redact sensitive or privileged information from documents, improving the efficiency of the review process.
Data visualization: GPT-3 tools can help visualize and analyze large volumes of data, making it easier to identify patterns and trends.
Overall, GPT-3 has the potential to significantly improve efficiency and accuracy in the e-discovery process by automating certain tasks and assisting with the review and analysis of ESI. GPT-3’s ability to process and generate human-like text makes it a useful tool for lawyers because it can assist with tasks such as legal research, document review, summarization, document drafting, and language translation.
THIS BLOG WAS ORIGINALLY POSTED IN 2009. IT IS ONE OF MY ALL-TIME FAVORITES.
To me this old blog seems like a timeless piece, just as relevant today, in 2023, as when first written. We are still stuck in a cave of shadows and lies. Only the true facts, seeing things as they are, will set us free. Perhaps eDiscovery, and the change in perspective it can provide will liberate us from propaganda, lies and shadows. Perhaps it can help lead us into the light.
I am tempted to tweak the essay a bit, but instead will work with ChatGPT in the coming days to do a complete rewrite where I will also use new AI generated images. More shadows? Or can AI help lead us from the bubble Caves?
The most famous allegory in all of Western Civilization is that of Plato’s Cave. This conceptual image is based on deep insights into the human condition. For millennium this analogy has allowed people to better understand each other and the world in which they live. As proof of its eternal veracity, I offer it as an explanation for why most lawyers today love paper and hate electronic discovery. The Socratic approach also points to a way out of the legal profession’s current crises of e-discovery competence; it suggests that a new form of education is imperative. The alternative may well be radical inter-generational disruptions and discontinuities in the practice of law.
First a refresher on Plato’s Analogy of the Cave. It is found at the beginning of book seven on The Republic, which was written by Plato in 380 BC. It takes the form of a dialogue between Socrates and Plato’s brother, Glaucon, concerning education. Socrates tells the story of prisoners who have been held captive in a cave all of their lives. They are chained so that they can only see shadows on the wall of people walking on a path behind them in front of a fire. They can not directly see the people or the things that they carry. They can only see their shadows cast on the cave wall. That is all they have know all of their life and so they mistake the shadows for the people and things themselves. They are totally absorbed by the shadows and have become quite adept at interpreting what they supposedly mean. Here is a common graphic illustration of the cave set up.
One day a prisoner is freed of his chains and taken out of the cave and dragged up into the light. After a long period of adjustment he is able to see in the new light filled world and discover that he had been mistaking shadows for reality. He returns to tell his prisoner friends, but has trouble adjusting to the dark and shadows. He cannot still see the fine distinctions that the prisoners make out in the flickering forms. They still cannot turn around or leave the cave. They still see only shadows and know nothing else. They do not believe their returning friend. He does not see the shadows as they do. They think he is quite mad. In fact, they hate him for his better-than-thou stories and would kill him if they could. To refresh your memory with more of the details of the story of Plato’s cave, watch this cool clay animation version. I am sure Socrates would have approved.
Want an even more detailed refresher of the story of Plato’s Cave? Then watch this longer video, featuring a reading of a translation of this segment of The Republic dialogue. Note how in today’s world the cave shadows have been replaced by television images and other mass media.
By the way, The Matrix movie is the latest popular cultural expression of this perennial idea. Check out this video which spells that out for you.
Now read the original words of Plato. After telling the story, Socrates explains to young Glaucon the significance of the analogy of the cave to life and education.
And again, do you think it at all strange, said I, if a man returning from divine contemplations to the petty miseries of men cuts a sorry figure and appears most ridiculous, if, while still blinking through the gloom, and before he has become sufficiently accustomed to the environing darkness, he is compelled in courtrooms or elsewhere to contend about the shadows of justice or the images that cast the shadows and to wrangle in debate about the notions of these things in the minds of those who have never seen justice itself?
It would by by no means strange, he said. …
Then, if this is true, our view of these matters must be this, that education is not in reality what some people proclaim it to be in their professions. What they aver is that they can put true knowledge into a soul that does not possess it, as if they were inserting vision into blind eyes.
They do indeed, he said.
But our present argument indicates, said I, that the true analogy for this indwelling power in the soul and the instrument whereby each of us apprehends is that of an eye that could not be converted to the light from the darkness except by turning the whole body. Even so this organ of knowledge must be turned around from the world of becoming together with the entire soul, like the scene-shifting periactus in the theatre, until the soul is able to endure the contemplation of essence and the brightest region of being. And this, we say, is the good, do we not?
Of this very thing, then, I said, there might be an art, an art of the speediest and most effective shifting or conversion of the soul, not an art of producing vision in it, but on the assumption that it possesses vision but does not rightly direct it and does not look where it should, an art of bringing this about.
Yes, that seems likely, he said.
This quote is from my favorite translation from the ancient Greek by Edith Hamilton and Hunington Cairns, published by Princeton University Press as part of the Bollingen Series.
Lawyers today, much like the prisoners of Plato’s cave, love paper because that is all they have ever known. They grow up in a paper world. They learn how to read on paper. They study paper books. They go to law schools where they learn that legal documents are made of paper. Their professors are just like them. They surround themselves with great piles of paper literature and paper case law. They teach using paper books and paper flip charts and require students to write papers. When taking evidence and trial classes, law students are taught with paper documents, shown how to test the authenticity of paper records and how to have paper admitted into evidence.
After school, older lawyers give them an endless supply of extra long paper, called legal pads, and do their best to keep them up to their neck in paper work. They are shown how to generate papers, copy papers, pile papers, file papers, notarize papers, shuffle papers, staple papers, clip papers, highlight papers, redact papers, watermark papers, and even add paper stickums to paper. They also learn how to keep paper calendars, speed-read large files full of papers, spot check papers, and carefully proof-read papers till they are perfect.
Some lawyers cover all of the furniture in their office with papers. A few even go so far as to put piles of paper on the floor creating an obstacle course to and from their desk, which is also entirely covered with papers. Papers make lawyers feel safe and secure. They provide status and prestige as a demonstration of productivity. They like to frame papers and put them on their walls. Some lawyers learn how to fax papers back and forth to each other. Some even learn how to email letters to each other and print out important ones to make them real.
Most judges and courts love paper too. Lawyers are required to serve papers on parties and opposing counsel, file papers with the court, and make paper trial exhibits. No witness exam is complete without marking papers, handing them to the clerk, opposing counsel, the judge, and then the witness. Some lawyers even blow up the special papers that they like to make them really, really big papers that everyone can easily see.
The trial lawyers are especially good with papers. They learn to chase paper trails, find tons of paper in other people’s filing cabinets, copy the paper, stamp the paper, produce the paper, and then explain the papers to a judge and jury. Some even learn advanced paper techniques such as Bates stamping papers to bring out their hidden order.
Lawyers live their entire life in a paper world. They start each day by reading a newspaper. When not doing paper work, they read paper books and magazines for fun. It is all paper, all the time, at work and at home. Lawyers are very adept at interpreting paper. They are the experts of paper forms. No paper is too lengthy or complex for them to figure out. Lawyers can and do stare at papers all day long
Just like the prisoners in Plato’s Cave, they do not know that their beloved papers are shadows, mere print outs of a greater electronic reality.
Almost all of the papers that lawyers love come from computers. There, in the electronic realm, they live in their full native glory. There, and only there, is all of their information intact, their metadata, interconnectedness, and search-ability. None of this information ever makes it to the printer. The paper printouts are just two dimensional depictions of parts of the original ESI, in the same way that shadows are just two dimensional depictions of the original 3D objects. Papers are pale substitutes for the original electronic creations.
Just as the prisoners in Plato’s cave saw only the shadows of the people and things that happened to pass on the path behind them, so too the lawyers see only the papers that happened to have passed through a printer. They thereby miss most of the information world. In truth, only a very, very small percentage of information is ever printed out. In fact, almost all businesses records today only exist in electronic form and are never reduced to paper. The world of electronic information is far larger, more complex, interconnected, and beautiful than the paper lawyers could ever imagine.
Some lawyers manage to escape from their paper prisons, embrace the new world of electronically stored information, and sing the body electric. The transition from the paper shadows to full ESI is not easy. At first, most are overwhelmed by the sheer complexity and volume of the electronic source behind the paper shadows they knew so well. They are dazed and confused by the full magnitude of the information. It takes them time to grow acclimated to the new metadata they can now perceive. It takes them time to understand the interconnectedness of all digital information and grasp how it can be instantly searched and processed. But when they do, a whole new world of languages and skills opens up to them. Slowly they become masters of the electronic world that most of their clients take for granted. They learn to speak in new technical languages and start to understand how the world around them really operates. They stop printing out their emails and start using spreadsheets. They learn to hack and hash. They enter the Internet unafraid and rejoice in the near infinite webwork of html. They are reborn in cyberspace. They become electric lawyers.
Just as in Plato’s story, some of the electric lawyers feel compassion for their paper brothers. They decide to return to the cave to try to practice law in the shadows again and share their new-found knowledge. At first, their eyes cannot adjust. They cannot remember all of the false distinctions made by those who do not grasp that paper is a mere printout of a larger reality. They speak in a language that the paper lawyers call techno-talk gibberish or computerese. They are not understood. Indeed, they are laughed at as nerds and geeks. When they first began to return in the early 1980s, the ones Ken Withers calls the protodigitals, the paper lawyers saw only their keyboards. In their darkness they understood them as typewriters and ridiculed the computer lawyers as secretaries.
The tales by electric lawyers of a vast new world of digital information, of better and faster, are misunderstood and ridiculed. The paper lawyers do not believe their wild stories of a so-called information explosion. They ignore the need to include requests for ESI in discovery. They reject the new hash stamps of digital information and stubbornly cling to their Bates stamps. The papers lawyers stick to the paper discovery. If they even bother to request email at all, they take the paper print-outs as if they alone were real. They do not understand metadata. It is invisible to them. So they refuse to produce it, whatever it is.
Just as in Plato’s story, the paper prisoners feel threatened by their electric brothers and sisters who speak a strange new language and live in a different world. They counter-attack in many ways. For instance, in the 1990s they persecuted electric lawyers who were the first to the Internet and accused them of broadcasting television ads without permission. One electric lawyer was even forced to submit his entire website to his state Bar association for approval as a television ad. His attempts to explain the world outside of the paper cave were futile. They saw the web show for themselves on the televisions sitting on their secretaries’ desks, which were actually computer monitors, but they did not understand the difference. The protodigital lawyer complied and printed out his whole website, disclaimers and all, consisting of thousands of pages of paper when so downgraded into two dimensions. Once the Bar governors saw the television add in the paper they loved and understood, they quibbled with a few terms, required a couple of revisions, and then approved his website, floridalawfirm.com, as a TV broadcast. The channel still remains, although the show has changed many times over the years.
In the Twenty First Century the paper lawyers continue to react as Plato predicted, albeit with more sophistication than before. They now spread rumors that electronic discovery is too expensive and will destroy our system of justice if not stopped. Other times they dismiss e-discovery as a mere fad that will pass. It is as if they really believed that people will soon abandon technology and return to the word of phone calls, ink, and parchment that they know and love. Flat screen computer monitors are starting to appear on cave walls everywhere, but they do not believe them. They live in denial.
When paper lawyers of today speak of computers at all, they speak only of computer viruses and threats to security. They attempt to clamp down on all employee computer use. They limit permissible software to ancient versions of Microsoft Office programs. They also try to make most of the Internet off-limits to all employees. They still pretend like only their clients’ paper records are real and only these papers contain information valuable for law suits. The only reason most clients have not left them years ago is that the senior in-house counsel are detached from the rest of the technologically sophisticated segments of the company. The senior in-house counsel are paper lawyers too and so they protect their own.
Some trial attorneys, with or without the permission of their clients, go so far as to enter into secret agreements with each other to ignore the alleged larger world outside the cave. They agree to look only at paper. Their often skeptical clients go along, intimidated by the rumors of runaway costs. Indeed, when paper lawyers dabble with ESI that they cannot ignore, they try to catch the fire through its shadows. That leads to mistakes, do overs, and wasteful expenses. It also often leads to sanctions and what appears to be unethical behavior. An ostrich can be mean when their head is removed from the sand against their will and they are forced to confront their own shadow.
Bray & Gillespie
A new order by Magistrate Judge Karla R. Spaulding illustrates this later point perfectly. Bray & Gillespie Management LLC v. Lexington Ins. Co. 2009 WL 2407754 (M.D.Fla. August 3, 2009). Severe sanctions were entered against the plaintiff and its lawyers for not producing hotel guest attendance records. The plaintiff’s paper lawyers only looked for these records in warehouses full of papers. When they found them in segments, they only made selective disclosures of what they found. They were caught and sanctioned. The whole thing could have been avoided by simply producing the electronic guest records that were, of course, at all times readily available in the plaintiff’s computer system. They did not even try to look there, even though a native production was specifically requested and ordered by the court.
As an excuse plaintiff had a legal secretary for in-house counsel file an affidavit where she said it was impossible to download or export the data from their software, IQWare. She actually swore that the only way to get the information was to print it out onto paper. This is of course absurd, as a ten second search shows that their software is just a customized MS SQL database. It would have been easy to copy the database and turn it over, but the lawyers and their assistants only understood paper. As a result, they will now almost certainly lose the case. Judge Spaulding has entered a report and recommendation that plaintiff’s complaint be dismissed with prejudice and fees taxed against the plaintiff, now in bankruptcy, and its lawyers, not in bankruptcy, for their intentional, bad faith withholding of evidence and defiance of court orders requiring production of electronic evidence.
Some Electric Lawyers Stay and Some Go
Some electric lawyers grow frustrated with paper law and disputes like we see in Bray & Gillespie. They leave the cave and the practice of law entirely. They go to work for high-tech companies, e-discovery vendors, or become consultants, and the like. They devise ways to make ESI accessible to lawyers by making ESI seem like paper. They learn to convert electronic information to pseudo-paper images called TIFF and JPEG files. They keep most of the metadata in separate load files and try to convince the paper lawyers to use these image files instead of the paper print-outs. They enjoy some success and whole industries have been started devoted to the creation of a netherworld of image files between ESI and paper. Special software has been devised to allow the paper lawyers to review the electronic files on computers as if they were paper. This kind of TIFF review is expensive, but it allows paper lawyers many of the comforts of the cave. They can keep their familiar Bates stamp and can easily make print-outs of any image files they see for use at paper trials.
Other electric lawyers refuse to leave their firms, they refuse to go solo or join the world of vendors and consultants. They love the law firm culture for the same reason that paper lawyers love paper. It is all they have ever known. They remain in the practice of law and learn to hide the light and play the shadow games. They go along with the vendors go-between world of electronic TIFF image files. They stop crusading about the wonders of full digital reality and thus escape the ire of their partners, but they never give up on trying to subtly persuade them. Some are successful. It is a slow process. More and more lawyers free themselves from their paper chains. The electric lawyers learn to sidestep the reactionary rules and deal directly with the clients who understand. They leave the cave as needed to maintain their sanity. They find sanctuary in their homes, families, and friends that are entirely out-of-cave and in the light.
Some electric lawyers are no longer satisfied with the compromise solution of hot-shadow TIFFs. They insist that the paper lawyers leave the cave entirely and deal directly with the original native forms. The clients of the paper lawyers are also not satisfied because the nether world of image review is expensive and they are asked to pay the bills. Some of the judges are also becoming dissatisfied with such pretend paper discovery. Yes, many judges have also been able to find their way out of the cave and see the light of full ESI. Once they return, they no longer tolerate the paper lawyers’ pretenses. They grow weary of the mistakes, hide-the-metadata blunders, last minute discovery requests, and the many sanctions motions that happen whenever paper lawyers play with the fire of ESI.
Education by Changing Direction, Not Inserting Vision
Although many lawyers have now escaped, the vast majority of the legal profession still live in the cave. Most lawyers are not able to keep up with technology, they are unable to deal with the electronic evidence underlying most lawsuits. They cannot adequately preserve it, collect it, process it, search it, or present it. In short, they cannot conduct e-discovery or comply with the new rules of procedure governing e-discovery because they do not know how. They only know and understand paper discovery and paper evidence. They are blind to the dynamics of electronic information.
If Plato’s theories of education are correct, this knowledge cannot simply be transmitted to them. There is no lecture or CLE program brilliant enough to insert vision into those habituated by a lifetime of paper. The mind is not a tabula rasa to be written upon by subject matter experts, especially by the time a person is an adult. As Plato said, learning requires “turning the whole body.” Lawyers must leave the caves, stop staring at the paper shadows, and make a change of direction. Lawyers must enter cyberspace and become familiar with computers and software of all kinds. Then, and only then, will learned lectures, over time, be effective.
The Socratic process of learning by changing direction and action has already begun. Many lawyers and paralegals today are ready to change and leave the cave. The message has gotten through and they know that paper is only a small part of reality. Most lawyers already have a computer on their desk and use email throughout the day. They are ready to escape the paper chains.
All that they need now is an effective education that facilities the process of a new direction. We cannot use paper to awaken people from a paper induced trance. By logic only a cyberspace approach to education will be effective. Our current brick and mortar approach to e-discovery education is conceptually flawed. Online education is the answer. As Marshall McLuhan said: “The medium is the message.”
Not just any online education of course. It has to be good, it has to be effective. For online education to work, to turn people around in the Socratic sense, it needs to be interactive, hands on, creative, and include dialogues and community. It needs to be a high quality art form; in Plato’s words: “an art of the speediest and most effective shifting or conversion of the soul.” Of course, I do not mean anything religious by this, but I do mean a total transformation of perception, attitude, thinking, and action.
This new education will not come from law schools, they are tied up by paper bound professors. It will come from private companies that lead in technology. It needs to come soon, because society will not wait on the paper lawyers much longer.
Some of the protodigitals in all lines of work raised families and taught their children to read on computers, not paper. Unlike all of their friends who were raised by paper parents, they learned about the world by computers and other digital media. They grew up with computers around them at all times. These children of protodigitals are the postdigital generation. Some of these second generation nerds are starting to graduate from law schools now. (Postscript – see egLosey.law by the author’s son)
Born into an all electric world, with electric parents, they have never known paper blinders. They see the shadows for the printouts that they are. They grew up using new software programs and computer games. They have blinding speed on the keyboard. Many now have an innate mastery of all software. If it plugs in, or has a battery, they understand it. The Internet is their playground. The information explosion and non-stop technology changes are their friends.
That is all they have known their entire lives. They do not read the newspaper. They do not particularly like paper, they like pixels. The postdigitals write with paper as a novelty, the way their parents first used a computer.
Electronic discovery comes easy and natural to these second generation digitals. The protodigital lawyers, protodigital judges, and technology clients are their friends. The future of the law is in the hands of these postdigitals. They will serve the needs of the technology companies and people of today and tomorrow.
The only question now is whether the new education that the rest of the profession needs will come quickly enough. If not, the vast majority of the legal profession may be stuck in their caves while the world passes them by. They need help now to get out and be able to compete with the second generation digitals.
If not, there is likely to be a sudden shift in fortunes unlike the profession has ever seen before. The law firm rankings are likely to change rapidly and permanently over the next ten years. Moreover, once the winds of change become obvious, law firms of the future will be forced to put the paper dinosaurs out to pasture well before their prime. That will be the only way they can survive, the only way to try to regain their standing. Early retirement may become mandatory, especially for trial lawyers, as they are no longer able to understand what is really going on. The information in dispute may simply be beyond their ken.
The postdigitals are not tied by bonds of affection to the prisoners left behind in the same way that the protodigitals are. The postdigitals will carry the profession forward into the light of new technology and information, with or without the paper prisoners. The businesses and public that the profession serves will see to that. So too will the protodigital lawyers and judges.
Without a new kind of education, those still bound in the caves by paper chains may simply be left behind. Even if they want to get out, and I think many now do, they may be unable to. Even if they get out, they may be unable to function effectively. They may be overwhelmed by the volume and complexity of it all. No matter what their age, the paper bound lawyers may become irrelevant before their time. They may simply fade away along with the newspapers they love.
That would be a shame, for they still have much to offer the future of our system of justice. I suspect that such a radical discontinuity would not be healthy. But, it may be inevitable. One way or another, radical change will come because the law must keep up with the society it serves.
This is the conclusion of the blog, The Right to Privacy in Modern Discovery: a review of another great law review article. See here for Part 1 and Part 2. This blog series considers the interplay between privacy and civil discovery as discussed in the law review article by Professor Allyson Haynes Stuart, entitled A Right to Privacy for Modern Discovery, 29 GEO. MASON L. REV. (Issue 3, 2022).
Part Three wrap up the series with longer than usual concluding remarks. Professor Stuart’s important article and insights are tied to efforts of the electronic discovery community. I plea for further efforts and make some specific suggestions, including a proposed change to Rule 26(b)(1) to add privacy as a proportionality factor. Evidence Rule 502 may also need to be revised. Vendors should also focus on new technological solutions. The need to address the problem of discovery privacy is urgent. EDRM, The Sedona Conference, the Advisory Committee on Civil Rules, and other important legal groups need to focus on this now, not later.
I look forward to hearing much more from Allyson Stuart in the years to come. We need to begin a new dialogue on how to treat confidential information in civil discovery. Judges and private practitioners like myself are facing these issues every day. Professor Stuart’s article is a good step towards finding a practical solution. A Right to Privacy for Modern Discovery, 29 GEO. MASON L. REV. (Issue 3, 2022). This is the first scholarly article I have seen focused solely on privacy in civil discovery, as opposed to the many legal articles on privacy in general, or ones just focused on attorney-client privilege, or international privacy. That is one reason her new article is so important.
I am impressed by Professor Stuart’s points and suggestions, but would like to hear more comments on her proposed framework. I hope her article and this blog series starts Sedona-style dialogues on the subject in many fora, not just The Sedona Conference. See eg.The 13th Annual Sedona Conference Institute Program on eDiscovery: Protecting Privacy, Confidentiality, and Privilege in Civil Litigation. This March 2019 Sedona Conference event in Charlotte was co-chaired by the well-known, retired Judge Andrew Peck and Andrea L. D’Ambra and had a great faculty. I would like to hear Sedona’s input concerning Professor Stuart’s article and proposals. Also see the 2018 publication, The Sedona Conference Data Privacy Primer. This Data Privacy Primer was a project of The Sedona Conference Working Group Eleven on Data Security and Privacy Liability and was first published for comments in January 2017. Much has changed since then, not only the shock and disruption of Covid and politics, and the ever accelerating advance of personal technologies and social media, but especially the recent, radicalizing shock of Dobbs.
Let’s hope that all serious students, practitioners, judges and scholars of the law, including Sedona, will revisit the discovery privacy issues and hear from the next generation of experts like Professor Stuart. This time I suggest groups narrow their focus to discovery as a sub-set of privacy. Let’s look at the trees, not just the forest. That is what working lawyers like me really need right now. Sedona and others may also want to have another group work on post-Dobbs personal privacy activity rights. That involves serious political issues way beyond my pay grade, and so I have no recommendations, aside from saying that The Sedona Conference would be a good place to try and reach legal sanity. So too would my current personal favorite, the EDRM. Let’s all cooperate and try to figure this out together.
Pleading for further rules revisions is, however, within my limited wheel-house. Even without the further advice of scholars and experts, I am ready to commit to Professor Stuart’s admittedly reluctant suggestion that Rule 26(b)(1), Frankenstein or not, be revised once again, to include Privacy as a factor in proportionality analysis. You could get fancy with the revisions, but I am presently inclined to go with a short and simple solution and just include the words “the privacy considerations” on the 26(b)(1) list:
. . . and proportional to the needs of the case, considering the 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, the privacy considerations, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
When the Advisory Committee on Civil Rules takes up this proposal, and I urge them to begin the consideration process at their next meeting, they should not only consider individual, corporate and government privacy rights, but also the costs and burdens to litigants to protect these rights. That should be part of any Committee comments, which are always included with a rules revision and carry great weight.
Redaction can be very expensive. In my experience as a practitioner over the last couple of years, it is much more expensive and burdensome than privilege logs. More expensive still, is the effort to cull out irrelevant ESI for privacy protection in productions.
Good work has been accomplished in cutting the costs of privilege logs, but now we should focus on the related, but different issue of privacy protocols for other types of confidential information in civil discovery. See eg. the work of the EDRM on privilege logs). Also see the excellent 2015, The Sedona Conference Commentary on the Protection of Privileged ESI. The Sedona publication discusses four general principles concerning privileged communications. The fourth principle is easily applicable to proportional privacy protection in civil discovery. It states “Parties and their counsel should make use of protocols, processes, tools, and technologies to reduce the costs and burdens associated with the identification, logging, and dispute resolution relating to the assertion of privilege.” The Sedona Conference Commentary on the Protection of Privileged ESI.
It is time to conclude and move beyond the privilege log projects and focus on related issues, other privacy protection concerns in discovery, including redaction protocols, court sealing protocols, filter team protocols, and confidentiality agreements and orders. We should look for ways to protect privacy rights, including the rule tweak here suggested. But in so doing we should be careful to control the costs. We do not want to create an accidental Frankenstein monster that eats up more time and money, not less. There are other many possibilities to both protect privacy and control costs. One might be expanding the scope of Evidence Rule 502 to include all types of confidential ESI within quick peek protection. Others solutions might be more technological in nature.
As usual, the success of any endeavor like this, of more rules, best practices and technology solutions, will depend on education of bench and bar, the cooperation of litigation counsel in implementation, and the active, learned supervision of judges. It will also depend heavily on pre-litigation records management and related record keeping best practices. See eg. the work of the EDRM going back to 2013 and the EDRM graphic here summarizing the protocol recommended.
Confidential, secret documents should not just be left lying around. And flushing secret materials down toilets is not proper, legal disposition. Companies, individuals and the government, especially the Executive branch of the federal government, must do a far better job. The laws governing confidential documents and privacy must be taken seriously and enforced. See eg. FULL TEXT OF THE OFFICIAL COURT REDACTED SEARCH WARRANT AGAINST DONALD TRUMP. The popular Internet meme that “privacy is dead” is a hacker myth, promoted by greedy tech-corporations, over-zealous journalists, foreign spies, criminals and kleptocrats everywhere. No society can function without privacy. A total lack of privacy is unnatural and wrong. It is an inalienable human right. The great Justice Brandeis correctly characterized “the right to be let alone” as “the right most valued by civilized men.” Olmstead v. United States, 277 U.S. 438 (1928) (dissent).
Privacy in discovery is a real problem in both civil and criminal litigation. See eg.In re Warrant, No. 22-8332-BER, 2022 U.S. Dist. LEXIS 150388 (S.D. Fla. Aug. 22, 2022). It requires our immediate attention, discussion and early response. Continued delay in addressing the discovery issues, the costs, benefits and burdens, will only make the situation worse. I come back to the proactive, stitch in timesaying that I have analyzed before in the context of litigation. Professor Stuart’s article has started the stitching in a scholarly, but accessible manner. We should be grateful to her for that and continue the important work.
Ralph Losey is a Friend of AIs, Writer, Commentator, Journalist, Lawyer, Arbitrator, Special Master, and Practicing Attorney as a partner in LOSEY PLLC. Losey is a high tech law firm with three Loseys and a bunch of other skilled attorneys. We handle major "bet the company" type litigation, special tech projects, deals, IP of all kinds all over the world, plus other tricky litigation problems all over the U.S. For more details of Ralph's background, Click Here
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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.
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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.