Article and Illustrations Written by GPT-3 as Generated by Human Attorney, Ralph Losey
Ralph Losey 2022 AI
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:
AI Generated image re AI doc classification
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.
AI Generated Art Using “Dall E 2” to Illustrate Predictive Coding in e-Discovery
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.
Spider-Man got involved in a recent federal case in Florida where the Judge, an apparent fan of Spider-Man, entered an injunction against the Florida Clerk’s e-Filing system (like Pacer) and the Clerk of the Court in Broward County. Courthouse News Serv. v. Forman, No. 4:22cv106-MW/MAF, 2022 U.S. Dist. LEXIS 103771 (N.D. Fla. June 10, 2022). The injunction required them to drastically improve public access to the state courts’ system and stop taking so much time on confidentiality protection. The Injunction Order is a masterpiece of clever language written by Chief Judge Mark Walker. It is made even better by his inclusion of a full color Spider-Man meme in the opinion, shown below, to illustrate one of Judge Walker’s main points. Read on to find out why.
First Amendment Principles, the Insatiable Appetite of the Press for Instant News and the Tedious Work of Privacy Protection
This case is a big win for the press media plaintiffs pushing First Amendment rights to court documents, but a significant loss and challenge to all state court clerks and others like me, concerned with litigants’ privacy rights. Florida Circuit Court Clerks must comply with this mandate for near instant access to e-filings of new cases and at the same time fulfill their duty to preserve privacy rights. Time will tell how they will meet this challenge.
Here is the First Amendment reasoning by Judge Walker behind this unusual injunction.
In Broward County Circuit Court, most civil complaints are unavailable to the public the day they are filed. Plaintiff, Courthouse News Service, argues that this state of affairs violates its First Amendment right to timely access court documents. This Court must determine whether the First Amendment encompasses such a right, and whether the current delays in access violate it.
The eighteenth-century British politician Edmund Burke apocryphally said that “there were Three Estates in the Parliament; but, in the reporters’ Gallery yonder, there sat a fourth estate more important far than they all.” Slavko Splichal, Principles of Publicity and Press Freedom 44 (2002). Our Nation’s founders thought as much, providing in the first amendment to the Constitution that “Congress shall make no law . . . abridging the freedom of . . . the press.” U.S. Const. amend. I. Indeed, the press is the only profession the Constitution expressly protects.
Courthouse News, supra at pgs. 1-2.
The Eleventh Circuit has likewise resolutely enforced the “presumption of public access” to court records, finding that the common law guarantees access to judicial records. Callahan v. United Network for Organ Sharing, 17 F.4th 1356, 1359 (11th Cir. 2021). But the Eleventh Circuit has yet to decide whether the First Amendment guarantees access to newly filed, non-confidential civil complaints, “the cornerstone of every case,” to which “access . . . is almost always necessary if the public is to understand a court’s decision.” F.T.C. v. AbbVie Prods. LLC, 713 F.3d 54, 62 (11th Cir. 2013).
As explained below, the First Amendment guarantees such access, and Broward County’s current system violates that right. Thus, Plaintiff’s motion for a preliminary injunction is GRANTED.
Courthouse News, supra at pgs. 2-3.
George Orwell’s Warnings in 1984
It is interesting to note that Chief Judge Walker is same judge that is hearing the First Amendment lawsuit recently filed to try to block the “Stop WOKE” law just passed by the Florida legislature. In a hearing on October 13, 2022, where both sides presented argument on the constitutionality of the new law that restricts what teachers can say and teach in public schools, Judge Walker is reported to have said:
“You (the government) can pick and choose what viewpoint you like and, under the guise of stopping indoctrination, you promote indoctrination. Why is that not so? . . . (You say) ‘We believe in academic freedom, so long as you say what we want you to say.’ That sounds like something George Orwell wrote.”
Judge spars with lawyers at ‘Stop WOKE’ lawsuit hearing (Orlando Sentinel, 10/14/22)
Why a Spider-Man Meme is Included in a Federal Court Injunction Order
Back to the Spider-Man case on e-filing. Why is a color Spider-Man illustration placed in a serious court order like this on the First Amendment and Privacy? We will share Judge Walker’s own words to explain why he included this funny meme. He provides the express reason, but we would be remiss not to remind the reader of the obvious unstated reason, the meta-reason, that the judge does it, and we do it too,because we can. With e-filing today, and adobe format, it’s easy to include interesting color graphics like this in anything you e-file in court, even intimate cell phone photos, and, after all, media types like us love this sort of thing.
First, a quick case background to set up the meme and explain what privacy has to do with this. The two defendants in this case are the Clerk of the Court for Broward County, Clerk Forman, illustrated by the Spider-Man on the left, and the Florida E-Filing Authority, Chair Rushing (ironic name as you will soon see), illustrated by the Spider-Man on the right (or is it visa versa?).
The Florida E-Filing Authority (“Authority”) is an entity created in 2010 by agreement of all Clerks of the Court in Florida, and Chair Rushing is herself a Clerk, to run the state’s e-filing system. Courthouse News Serv. v. Forman, FN1 at pg. 4. The Authority developed, owns, and governs the web Portal through which all pleadings are filed in Florida state courts. As Judge Walker explains:
Before filing a complaint, the filer must enter case information such as the relevant jurisdiction, the type of lawsuit, party details, claim amounts, remedies sought, and whether the complaint contains confidential information. Id. at 8–24. Then, before uploading the complaint, the filer is reminded of their sole responsibility to ensure the redaction of confidential information. Id. at 25. Once a complaint is received through the Portal, the Authority processes it by “stamp[ing] the filing with the official file stamp date and time” and sending “a Notice of Electronic Filing . . . to all parties selected on the E-Service list for that court case.” ECF No. 43-1 ¶ 3. After the Authority processes the complaint, it transmits the complaint “to the selected county for review and processing.” Id. ¶ 4. Despite all the information gathered during submission, the Authority only filters complaints by county and does not separate confidential filings from non-confidential filings. Id. The Authority simply transmits each complaint “in the order in which it is received.” Id. ¶ 3. “Generally speaking,” it takes “no longer than 5 minutes” to process and transmit a complaint from the Portal to the appropriate clerk of court. Id. ¶ 8.
So the e-filings go from the Authority, who has set up a fully automated processing system, that provides no analysis, automated or human, as to filing confidentiality and privacy and the e-filers statements provided on confidentiality, sealing, and the like. The Authority simply forwards the e-filings to the various counties in Florida, including heavily populated Broward County, with Clerk Forman. The Authority does so in only five minutes for which Chair Rushing is justly proud and happy they their responsibility, at least as they conceived it, ends, and the poor clerks in the various counties begins. Then the Clerks, including Forman, have the task of trying to segregate the filings into two stacks (at least), one requiring special confidentiality treatment, and another where such special treatment has not been requested by the e-filers themselves (it used to be worse, but this is the streamlined version that went into effect in 2021 that places more confidentiality burdens on Florida lawyers, such as redactions, and less on Clerks). Courthouse News, Supra at pgs. 5-6.
The Authority does not segregate out the new filings where special treatment for confidentiality has been requested, an omission that Judge Walker found objectionable. The various clerks have to both segregate and figure that out and comply with the parties confidential requests and rules. This is not an automated process for the Clerks, but rather a tedious manual task delegated to over-worked humans working at relatively low pay in the Clerk’s office. Some offices are slower than others, and according to the ever-impatient plaintiff news organizations, Broward’s office is the slowest in the state. Slow but careful, I’m sure.
The low benchmark of Broward County and Clerk Forman for new case filings that has Courthouse News and other media companies so enraged, and is really the heart of the alleged violation of the First Amendment, is uncontested: 13% of complaints are available the day they are filed, 44% a day after filing, 14% two days after filing, and 29% three or more days after filing. The whole case is about the alleged delays in allowing their reporters to see new case filings, to look for the latest Breaking News (a statement I for one am sick of from its over-use), celebrity gossip, and sometimes, although in my experience very rarely, some important stuff.
The plaintiff’s alleged and the judge agreed that the First Amendment was threatened by the days delay (the worst in the state). As the plaintiff’s attorneys put it, its called News, not Olds, for a reason, and this kind of delay is just not acceptable. Courthouse News, Supra at pg. 7. The highly skilled plaintiff’s attorneys here argue successfully that the First Amendment guarantees that the public’s insatiable desire must be immediately met, the same day, for yet more and more court information, that “by the time Plaintiff learns of many of the civil complaints filed in Broward County, their newsworthiness has already faded.” Id.
Personally, I am not convinced. No one seems to consider what an unreliable source of information new pleadings are, for they can say just about anything, are exempt from libel, and they often include all kinds of outrageous accusations with no real basis in the facts. Furthermore, rushing around does not help anyone. It breeds mistakes. Privacy is important too and deserves to be done right. After all, once a mistake is made, and the genie is of confidential information is out of the bottle, there is no putting it back.
Now finally we get to the Spider-Man graphic, the “You!” meme. The defendants here not so cleverly decided on a defense where each blamed the other. Clerk Forman points to Chair Rushing and says she is to blame for not segregating the thousands of e-filings they get every day into two piles and otherwise providing no help on the time consuming privacy work, whereas Chair Rushing points right back and says no, Clerk Forman is to blame for not doing her job faster. The plaintiff news companies meantime just look back and smile as the gooey Spidey mess goes everywhere. Experienced trial lawyers just sigh, maybe grin a bit at the questionable circular firing squad defense.
Here is how the good Judge Mark Walker explains the use of the pointing blame defense and Spidey meme:
For the reasons articulated above, both Defendant Rushing and Defendant Forman are responsible for the delays in access in Broward County. Given the “unique” structure of Florida’s e-filing system, ECF No. 43 at 8; see also ECF No. 43-1 ¶ 11 (“Portal staff is unaware of any other state that uses an entity such as the Authority to operate an e-filing portal.”), it comes as no surprise to this Court that the Defendants’ litigation tactic is to point fingers, as illustrated below.
Neither can escape liability by shifting blame to each other, nor can they evade constitutional scrutiny by maintaining an administrative labyrinth. The way Defendant Rushing transmits complaints creates the delay, and Defendant Forman’s time-consuming review exacerbates the delay. Accordingly, both Defendants are responsible for the alleged constitutional violation.
Courthouse News, Supra at pgs. 24-25.
For more detail on the meme itself Judge Walker favored us with a footnote.
7 As one pop-culture commentator explains, “[t]he image of the two pointing Spider-Men has been captioned—and sometimes recreated—in all sorts of different ways. It’s been around since at least 2011. It’s been used by fans, celebrities and even politicians to make funny comparisons between people that either seem oddly similar or are engaged in the same activity.” Nicholas Raymond, The Origin of The Spider-Man Pointing Meme, Screen Rant (Jan. 4, 2020), https://screenrant.com/spider-man-pointing-meme-cartoon-origin/.
Courthouse News, Supra at Fn. 7, pg. 24
Conclusion
That’s right, one court clerk, Chair Rushing, points blame at another court clerk, Clerk Forman, when both clerks are super-heroes trying to do the same things. They are both trying to administer a rusty e-filing system, one severely strained by Florida’s population explosion and a pandemic, not to mention a system based on low-state-budget-technology. The Judge’s Injunction and Spider-Man graphic had a good effect. Courthouse News Serv. v. Forman, No. 4:22cv106-MW/MAF, 2022 U.S. Dist. LEXIS 103771 (N.D. Fla. June 10, 2022). After the injunction was entered the two clerk Spideys started to get along and everyone entered into a settlement agreement. Hopefully, peace will last for a while and the news media wont have to wait a day for the exciting news spewing out of state court e-filings. (Yawn.) Hopefully the privacy rights of citizens will not suffer due to the increased time demands. (A much more urgent concern.)
In view of the history of the more expensive federal system’s Pacer, I am skeptical. For the latest Pacer leak impacting over 500,000 cryptocurrency owners who were not parties to the bankruptcy proceeding, see: Celsius Exchange Data Dump Is a Gift to Crypto Sleuths—and Thieves (Wired, Oct. 13. 2022); In re Celsius Network LLC, 642 B.R. 497 (Bankr. S.D.N.Y. 2022). The whole area of e-filing, state and federal, is in need of reform, including better infrastructure.
Summary and analysis of Professor Allyson Stuart’s much needed law review article on privacy in ediscovery in civil litigation. The article is supplemented with written and video interviews of Professor Stuart on ediscovery and privacy issues. In Part 2 there will be a special focus on the impact of the Supreme Court’s overturn of Roe v Wade, which was rendered after the article’s publication.
This blog is the first part of my review of one of the most informative and useful law review articles I have read in a long time. A Right to Privacy for Modern Discovery, 29 GEO. MASON L. REV. (Issue 3, 2022). The article is by Professor Allyson Haynes Stuart of the Charleston School of Law. I encourage you to download and read A Right to Privacy for Modern Discovery and keep it handy for its many good case citations. Professor Stuart is a bona fide expert in this area. She specializes as both a scholar and legal practitioner in information privacy, e-discovery and Internet law; three of my favorite subjects.
This is my second venture this year into review of law reviews. For the first on another of my favorite subjects, artificial intelligence, see the May 2022 blogs, Robophobia: Great New Law Review Article – Part 1, Part 2 and Part 3 and Professor Wood’s article, Robophobia. Woods, Andrew K., Robophobia, 93 U. Colo. L. Rev. 51 (Winter, 2022). These highly intelligent, engaging law professor attorneys, Woods and Stuart, give me renewed hope for the profession in general and, especially, for the key areas of technology law.
About Professor Allyson Hynes Stuart
Allyson Haynes Stuart
Allyson Haynes Stuart joined the Charleston School of Law faculty in 2004. Allyson is a 1995 magna cum laude graduate of the University of South Carolina. Upon graduation she clerked for David C. Norton, District Court Judge for the District of South Carolina in Charleston. She then worked as an associate for Cleary, Gottlieb, Steen and Hamilton from 1997-2002, and then as a director of the legal department at Sony Corporation of America, 2002-2004. At Charleston School of Law Stuart Professor Stuart teaches contracts, civil procedure, evidence, information privacy law and e-discovery. She has also taught as an adjunct professor at Brooklyn Law School and at the Institute Empresa (I.E.) Law School in Madrid, Spain.
Professor Stuart has written many other articles of interest to readers, including:
Allyson Stuart has also served as Of Counsel for the Crystal law firm, since 2015. The firm has an intriguing slogan: “Lawyers for Lawyers and International Matters.” The firm says that it is primarily a transactional law firm that offers some litigation services.
To conclude the personal introduction, Allyson, like me, has her own YouTube Channel, focusing on legal instruction. Professor Stuart’s videos, made in 2013, are on what she calls “flipping the classroom.” They address most first semester Contracts issues as well as some difficult aspects of Evidence.
Introduction to Professor Stuart’s Article
Privacy in discovery has been largely ignored in rules of civil procedure and left to the courts and lawyers to come up with their own solutions. The result is a hodge-podge of case law and local rules. This area of the law is, as Professor Stuart aptly describes, buried in “surprising obscurity.” Her article is a much needed unearthing and organization of the law. As Professor Stuart explains in her introduction after discussion of federal civil procedure rule changes:
Amid all these changes, little attention has been paid to privacy as opposed to time and expense.10 The Rules do not provide for explicit protection against discovery based on privacy,11 with the exception of redaction of personal information under Rule 5.2.12 There has long been the idea that privacy protection exists against government searches and seizures, but that there is no such concept in civil discovery.13 However, close analysis of cases reaching back to the adoption of the Rules shows that federal courts have in fact used privacy rationales to protect against discovery in many areas. District courts in particular have developed an interpretation of the Rules that protects litigants and non-litigants from discovery; courts have developed certain categories of protected information based on a balancing of the right to privacy against the need for the information in the context of the litigation.14 This law derives from Supreme Court precedent, from public policy represented in federal and state statutes, and from discretionary judicial application of the Rules. This Article unearths this body of law from its surprising obscurity. With a firm grounding in the foundations and justifications for federal protection of privacy in discovery, and in light of recent Supreme Court doctrine, the Article describes how privacy arguments can address increasingly intrusive discovery demands.
Overview of Professor Stuart’s article, A Right to Privacy for Modern Discovery
After an Introduction, A Right to Privacy for Modern Discovery begins with a historical overview of privacy in civil discovery, including the landmark case of Hickman v. Taylor, 329 U.S. 495 (1947). Professor Stuart observes that discovery protections can be divided into two broad categories. One is protection for information or communications deemed confidential, including attorney-client, trade-secret, business records, tax returns. The other is protection for personal privacy reasons, which professor Stuart explains:
is based on Supreme Court interpretation of the constitutional right to privacy in intimate or otherwise highly personal matters, including marriage, contraception, sexual activity, medical information, family relations, and other personal information. In addition, the Constitution protects against compelled disclosure of information that would violate a person’s First Amendment rights, such as freedom of association.
As to the Constitution based privacy protection provided to discovery in civil proceedings (criminal proceedings are not discussed directly in this article), Professor Stuart notes three broad areas:
Freedom from Compelled Disclosure of Association: NAACP v. Alabama and Seattle Times v. Rhinehart.
Privacy of Intimate Matters: Griswold v. Connecticut, Whalen v. Roe, and Roe v. Wade.
Freedom from Compelled Disclosure of Personal Matters: Whalen v. Roe, Nixon, and Reps. Comm.
Next the article considers the public policy of privacy in discovery and identifies three basic grounds:
Statutory Publication Shelters
Persuasive State Law
Balancing the Privacy and Litigation Interests
As to the balancing used to provide privacy to litigants, four factors are considered:
Clear Relevancy Rather Than Mere Impeachment
Evidentiary Influences
Third Party Protection
Protective Measures
The next section is Privacy in Modern Discovery, discussed in detail below, followed by the Conclusion. The Privacy in Modern Discovery section, which is the real meat of the article, is divided into three main parts:
Discovery Today, which includes E-Discovery and Proportionality, Modern Subjects of Discovery such as cell phone and social media, Fitbits and other smart trackers, and other discovery from the Internet of Things.
Supreme Court Case Law on Privacy and Technology, including the impact on civil discovery of issues arising in criminal cases, such as cell-phone searches, GPS tracking and the “mosaic theory” of collective personal data accumulation.
A Modern Framework for Privacy Protection in Discovery, examining the current arguments about privacy in discovery.
Discovery Today
Professor Stuart’s Privacy in Modern Discovery section begins, as noted, with the Discovery Today overview (II.A.). Most readers here will already be familiar with these topics and discussion, so I will not go into them in depth. One important insight she provides pertains to the omission of “privacy” as an express factor for proportionality consideration under the Rule 26(b), FRCP.
While the Rules revisions generally addressed the tremendous rise in ESI volume and costs with emphasis on judicial intervention, cooperation, and reduction in scope, they did not give specific attention to issues of privacy.219 However, as discovery’s intrusiveness has pervaded not just vast storage databases and email but chronicles of individuals’ personal lives, privacy has received more attention. Commentators have advocated for privacy to be a factor in the proportionality equation,220 and courts have followed suit.221 Privacy has also featured prominently in recent Fourth Amendment case law, which has in turn influenced discovery decisions.
In a recent email exchange with Allyson Stuart on the interesting point of Rule 26(B), I pressed her on whether she thinks the Rule should be changed again. Here is her response, which, I should add, she gave me permission to include in this blog post:
I have mixed feelings about yet another revision to the Frankenstein that is Rule 26. As it is, many practitioners fail to pay attention to the revisions, treating the scope as still including anything that would lead to the discovery of relevant evidence and failing to recognize that proportionality is nothing new. I think instead the culture needs to be curbed, and attorneys should not try to obtain a vast amount of e-discovery simply because it is accessible. The casual nature of email, text and some social media content make them catnip for attorneys, but I really believe there is a chilling effect on litigation because of it. In particular, if the only relevance for certain discovery is impeachment value, it should be weighed less strongly against competing privacy interests. All that said, I would love it if the word privacy were included in the proportionality factors.
Author’s Correspondence 8//9/22 with Professor Stuart
I love how she describes Rule 26 as a Frankenstein. The question remains should privacy be added as another body part to the proportionality considerations. In a video conference with Professor Stuart on August 23, 2022, she expanded on this point. Here is the relevant excerpt, which, I should again add, Allyson Stuart gave me permission to record and publish.
Aside from Rule 26(b) and including privacy factors as part of a proportionality analysis, another hot issue today practitioners is cell-phone discovery. It is found at II.A.2.a. Professor Stuart’s article and case citations and discussion on this point are a helpful starting point for your research. Be sure to look at the article itself for the all-important footnotes.
As the Supreme Court has recognized, cell phones are ubiquitous.222 Courts find a strong privacy interest in the content of those devices, particular when a party seeks a forensic examination of the phone.223 Like inspection of litigants’ hard drives and other computer systems,224 inspection of cell phones implicates privacy rights, privileged communications, and non-relevant information.225 Courts are therefore reluctant to order litigants to submit their cell phones to their opponent for purposes of forensic examination absent necessity for purposes of finding highly relevant evidence, or proof of spoliation.226 Courts also find a strong privacy interest in cell phone records.227 Courts have been strongly persuaded by recent Supreme Court Fourth Amendment doctrine in finding privacy rights in this data.228
Professor Stuarts discussion of case law is also very interesting in the Fitbit and Internet of Things sub-sections of Discovery Today (II.A.2.c.&d.). She points out that:
All of these subjects of modern discovery push the boundaries of privacy. Technology enables the gathering and storage of vast amounts of information that create digital chronicles of individuals’ personal lives. This phenomenon has been the focus of recent Supreme Court decisions in the Fourth Amendment context.
In Part 2 of this blog series I will go on to next section of her article, II.B., entitled Supreme Court Case Law on Privacy and Technology. This is very interesting, especially considering the Supreme Court bombshell case on abortion that came down after her article. Dobbs v. Jackson Women’s Health Organization, 597 U.S. _ (2022). Part 2 will go into all of this, along with criminal law considerations, and several more written and video interviews of Professor Stuart, including an interview that goes beyond discovery issues to consider the general privacy implications of Dobbs. I will also consider the privacy implications and other issues raised by the recent Donald Trump criminal warrant.
European Parliament overwhelmingly approved the first draft of the Digital Services Act to regulate big tech data collection and advertising
On January 20, 2022, the European Union took a major, first step in passing laws to transform how technology companies do business in the EU. There are still several steps before the laws become final, but in the initial vote the 27-nation members overwhelmingly approved tighter controls.
The proposed Digital Services Act would, among other things, require major technology companies to aggressively police content and further limit advertising. For example, the law would require companies to remove content considered illegal in the country where it is viewed. This would include such things as Holocaust denials in Germany and racist postings in France. It would also allow Europeans to more easily opt out of targeted advertising and prohibit advertising targeted at children.
To quote the colorful warning statement of Christel Schaldemose, the center-left lawmaker from Denmark who led negotiations on the bill:
With the [Digital Services Act] we are going to take a stand against the Wild West the digital world has turned into, set the rules in the interests of consumers and users, not just of Big Tech companies and finally make the things that are illegal offline illegal online too.
This is a warning shot across the bow for high technology companies everywhere.
The debate by the European Parliament and Council of the European Union on the final language is expected to take months. The law may serve as a model for the U.S. where Congress is also considering legislation. Greater control over digital practices worldwide seems inevitable. Tech companies would be wise to modify and amplify their efforts accordingly. That will make tweaking a little easier down the road when legislation is final. It is not to hard to read the writing on the wall.
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
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 litigation and 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.
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