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The Right to Privacy in Modern Discovery: a review of another great law review article – Part 2

September 8, 2022

Professor Allyson Stuart (image by Losey)

This is part two of the blog series, The Right to Privacy in Modern Discovery: a review of another great law review article. See here for Part 1. 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). The blogs are supplemented by Allyson’s written comments and video interviews.

In Part Two we continue review of the article, plus share Professor Stuart’s supplementary comments and videos. They will address criminal law considerations and the impact of the Supreme Court’s bombshell case rendered in draft and then final form after her article. Dobbs v. Jackson Women’s Health Organization, 597 U.S. _ (2022). The Professor’s unexpected comments are somewhat hopeful, at least in so far as civil e-discovery is concerned.

Supreme Court on Privacy and Technology

Photo by Losey of the Supreme Court before the fences went up

Next up in our review of Professor Stuart’s law review is subsection B. Supreme Court Case Law on Privacy and Technology of Section II. Privacy in Modern Discovery. She starts off with a good summary of civil discovery law.

Under the discovery rules, there is no concept of “reasonable expectation of privacy.”²⁶⁷ A diary entry is perfectly discoverable if it is relevant.²⁶⁸ A statement shouted from a rooftop is not discoverable if irrelevant. Instead, the rules speak in terms of privilege.²⁶⁹ Federal courts recognize that privacy interests are implicated in the discovery rules and that courts should protect privacy interests as part of their issuance of protective orders,²⁷⁰ but do not treat discovery as constrained by the Fourth Amendment. However, concepts of privacy have inevitably overlapped. Many courts refer to “expectations of privacy” in the context of civil discovery.²⁷¹

She then discusses the series of Supreme Court cases noting how technology today has changed privacy analysis in criminal cases and then concludes subsection B as follows:

There are implications of this theory too in the civil discovery context. In addition to discovery of cell phone information, where courts have already applied recent Supreme Court doctrine in protecting against broad examination,³⁰² other types of discovery should be viewed through this lens, including social media, health tracker data, and other information from devices connected to the IoT.

A Modern Framework for Privacy Protection in Discovery

The next subsection is C., A Modern Framework for Privacy Protection in Discovery. Here Allyson Stuart lays out her proposal for reform of civil discovery. Here is the summary she provides in the opening paragraph.

First, privacy rights in discovery are protected by the Constitution when requests touch on personal, intimate matters, or implicate rights to association like donor or membership lists, and are protected by public policy when they implicate state or federal statutory confidentiality provisions. Second, when such privacy rights are implicated, courts should require a higher showing of relevance as opposed to discovery that is solely for purposes of impeachment or is otherwise “collateral.” Courts should apply higher limits still when private information is sought from or implicates the rights of third parties. And third, even where information sought does not fall within traditional notions of confidentiality or constitutional zones of intimacy, the totality of what is comprised within broad sets of data may implicate privacy pursuant to the mosaic theory. All three of these bases for restriction are proper subjects for arguments that discovery is not proportional under Rule 26(b), or should be protected under Rule 26(c).

I urge you to read the full article for her complete argument for this new framework for privacy protection in discovery. A Right to Privacy for Modern Discovery, 29 GEO. MASON L. REV. (Issue 3, 2022).

Professor Allyson Stuart’s Conclusion

After the framework discussion and argument in the article, comes the all important conclusion. It is excellent, so I reproduce it in full, again to entice you to read the whole article.

As in the Fourth Amendment context, discovery has been upended by changes in technology. Information that was not capable of creation is now saved automatically in vast databases. Formerly private communications are now shared in semi-public fora. People’s movements, bodily functions—indeed, their entire lives—are chronicled by devices on their wrists or their countertops. Courts can and should apply privacy protections when this data is sought in discovery.

Text messages and other communications may be private if they implicate personal relationships or otherwise intrude on the zone of intimacy. Fitbit data intrudes on privacy of medical and other personal information, and may include GPS data that gives a detailed record of a user’s activity every day. Social media account information too could offer a detailed portrait of a user’s life, and could implicate associational and other constitutional privacy rights. Finally, all of these discovery requests risk the privacy of third parties. These considerations are appropriate for a court in balancing the need for the discovery—including how relevant it is to the claim—against the intrusion into the privacy of the party and others. The law gives courts the discretion to say this comprehensive, intrusive discovery is not proportional.

Privacy in the Context of Criminal Discovery

I asked Allyson Stuart to comment on an issue slightly outside of her article, but related, namely privacy in criminal discovery. I wrote about this recently in a lengthy blog series, Examining a Leaked Criminal Warrant for Apple iCloud Data in a High Profile Case, Part One, Part Two and Part Three. She later read this series, but before that, commented generally on privacy in the context of criminal discovery. Again, I share these comments from a private email with her permission:

One thing that I find interesting is the idea that the Fourth Amendment should apply to civil discovery. I cite at least one article making that argument in my article. Otherwise there is certainly more robust protection under the Fourth Amendment than under interpretation of Rule 26. In particular, Jones, Riley and Carpenter do a good job with changing technology in the 4^th A. context.

Professor Stuart and I also discussed by video the Fourth Amendment’s indirect impact on civil discovery. Again, here is our chat shared with her permission.

Professor Stuart on the Fourth Amendment and Civil Discovery (Losey video)

My blog series Examining a Leaked Criminal Warrant for Apple iCloud Data in a High Profile Case concerned the leak of a criminal warrant that was filed under seal and was supposed to remain secret. The public posting of the secret warrant on Pacer appears to have been an accident, a major blooper to be sure. My article discusses the dangers posed to both civil and criminal suits by wide-spread public access to Pacer. Also see: The Sedona Conference Commentary on the Need for Guidance and Uniformity in Filing ESI and Records Under Seal. My concerns about Pacer are broad-based: First Amendment rights, individual privacy rights, privacy rights of individuals under investigation, the rights of criminal investigators for unimpeded discovery of the truth, and the rights of litigants to preserve trade-secrets and other confidential information. Professor Stuart agreed generally with these comments on Pacer in my article, stating in correspondence, which, again I have permission to publish:

Wow, what a blunder. And I think for all the reasons you mention this makes it more important than ever to limit private material at the front end. Sealing or confidentiality can be problematic. TMZ has a field day when anything shows up involving celebrities (not that I am particularly sorry for them). But the whole “practical obscurity” of court filings is clearly a thing of the past, and the federal government moves so slowly when it comes to technology.

The recent case concerning a normally secret criminal warrant against a past President, one that has high First Amendment values for that reason, is instructive on litigants privacy, Pacer and balancing privacy interests against the public’s right to know. In re Warrant, No. 22-8332-BER, 2022 U.S. Dist. LEXIS 150388 (S.D. Fla. Aug. 22, 2022). Motions to unseal the warrant were brought by almost every major news organization in the world as Intervenors and opposed by DOJ. On August 22, 2022, Magistrate Judge Reinhart ordered the Warrant to be unsealed, but only after the DOJ first had an opportunity to suggest redactions. He imposed a deadline of August 25, 2022, for the DOJ to file, under seal, the warrant with redactions. His reasoning is very timely and instructive:

Despite the First Amendment right of access, a document can be sealed if there is a compelling governmental interest and the denial of access is “narrowly tailored to serve that interest.” Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606, 102 S. Ct. 2613, 73 L. Ed. 2d 248 (1982). . . .

The Government argues that unsealing the Affidavit would jeopardize the integrity of its ongoing criminal investigation. The Government’s motion says, “As the Court is aware from its review of the affidavit, it contains, among other critically important and detailed investigative facts: highly sensitive information about witnesses, including witnesses interviewed by the government; specific investigative techniques; and information required by law to be kept under seal pursuant to Federal Rule of Criminal Procedure 6(e).” ECF No. 59 at 8. . . .

After weighing all the relevant factors, I find that the Government has met its burden of [*16] showing good cause/a compelling interest that overrides any public interest in unsealing the full contents of the Affidavit. . . . I must still consider whether there is a less onerous alternative to sealing the entire document. The Government argues that redacting the Affidavit and unsealing it in part is not a viable option because the necessary redactions “would be so extensive as to render the document devoid of content that would meaningfully enhance the public’s understanding of these events beyond the information already now in the public record.” ECF No. 59 at 10; see also Steinger, 626 F. Supp. 2d at 1237 (redactions not feasible because they would “be so heavy as to make the released versions incomprehensible and unintelligible.”). I cannot say at this point that partial redactions will be so extensive that they will result in a meaningless disclosure, but I may ultimately reach that conclusion after hearing further from the Government. . . . I therefore reject the Government’s argument that the present record justifies keeping the entire Affidavit under seal.
Id. at *15

On August 26, 2022, the judge approved the redacted warrant and it was unsealed and opened to public view. I then was able to immediately download a copy and post it on my blog, FULL TEXT OF THE OFFICIAL COURT REDACTED SEARCH WARRANT AGAINST DONALD TRUMP.

Dobbs v. Jackson Women’s Health Organization

I also asked Professor Stuart to address for my readers the limited topic of what Dobbs has done to the right to privacy in discovery. She is currently working on a full article on this important subject. So please take this short comment as something of a teaser. I will let you know when the full article is released. Her full essay will look more generally “at how far the Dobbs decision goes to eroding not just the right to choose but the more general right to privacy that Roe found implicit in the Constitution.” Stuart, private correspondence with Losey, August 2022. In the meantime, here is her comment on Dobbs.

In sum, Dobbs most directly threatens the right to privacy in the sense of autonomy and decision-making. It is less of a threat to the privacy of information. This conclusion is buttressed by the decision by the Court in the previous term striking a California statute that required disclosure of donor information, Americans for Prosperity Foundation v. Bonta, 594 U.S. __ (2021). While grounded in the First Amendment’s freedom of association, the opinion gives broad support to privacy concerns respecting anonymity in relation to “sensitive causes.”
Professor Stuart, Id.

Professor Stuart was kind enough to create a video for us that further explains this distinction and the impact of Dobbs.

Professor Stuart on “Dobbs” and right to privacy (used with permission)

Stay tuned for Part 3 coming soon with the Conclusion of this series. I will make specific suggestions for how to build upon the important work of Professor Stuart in privacy and discovery, including yet another revision to Frankenstein Rule 26, and how the EDRM, The Sedona Conferences and other organizations can help.

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Posted by Ralph Losey

The Right to Privacy in Modern Discovery: a review of a great, new law review article – Part 1

August 29, 2022

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 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:

Social Media, Manipulation, and Violence, South Carolina Journal of International Law and Business, Vol. 15 Iss. 2 (2019) p. 100 – 132.
“Sign-In Wrap” on Mobile Apps, South Carolina Lawyer (2017).
Making Sure BYOD Does Not Stand for “Breach Your Organization’s Data”, South Carolina Lawyer (2016).

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.

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Posted by Ralph Losey

Back to Where I Once Belonged

January 25, 2022

I’ve escaped the e-Discovery Niche After 15 Years of Super-Specialization

After fifteen years of writing weekly blogs on e-discovery, I took three years off to focus on implementation of all those words. Now I’m back, back to where I once belonged. Writing again, but writing not just about my Big Law niche, the fun little AI corner that I had painted myself into, but back to writing about ALL of my interests in Law and Technology. That has been my home since I started in legal practice in 1980 and at the same time started coding, mostly games, but also music software, midi creations and law office technology. Proud to recall that I was one of the first computer lawyers in the country. (Also one of the first to get in trouble with the Bar for my Internet Website, FloridaLawFirm.com, which they thought was a television broadcast!)

Anyway, when not haggling with the Bar and fellow attorneys who would tease me, the first nerd, and call me a “secretary” (ooh how terrible) for having a keyboard on my desk. I kid you not! I used PCs when they first came out in my law firm as the new associate. I have had them on my desk to try to work smarter ever since. Not PCs necessarily, but all kinds.

So I’m back to where I once belonged, in the great big world of technology law, making deals and giving advice. Oh yeah, I may still consult on e-discovery too, especially the AI parts that so fascinated me ever since my Da Silva Moore breakthrough days. (Thank you Judge Andrew Peck.) For my full story, some of which I had to hide in my Big Law role as a super-specialist, see: https://www.losey.law/our-people/25-uncategorized/108-ralph-losey Not many people know I was a Qui Tam lawyer too; and for both sides.

Wait, there is still more. I’ve left the best for last. I went back home, left Big Law for good, and am now practicing law with my son, Adam Losey, daughter in law, Cat Losey, and thirteen other, crazy tech lawyer types at Losey.law. Yes, that is the real domain name and the name of the firm itself is Losey. So of course I had to go there. Check it out. Practicing law with my son is a dream come true for both of us. I’m loving it. It was lonely being the only tech wiz in a giant firm. Adam knows tech better than me, is much faster in every respect (except maybe doc review with AI) and he and Cat are obviously a lot smarter.

To my long-time readers, thanks for your encouragement. I heard you and got back to my roots of general tech-law, and got back to blogging and home. To quote the Beatles the funny “Get Back” song in their great LET IT BE album:

Rosetta (who are you talking about?) about Sweet Loretta Fart. . . .
Get back, get back
Get back to where you once belonged
Get back, get back
Get back to where you once belonged
Get back Loretta ooh, ooh
Go home
Get Back (Remastered 2009) – YouTube

Stay tuned, because a new blog is coming at you soon. Feel free to drop me an email at Ralph at Losey dot Law. Humans only please. Robots not welcome (unless you’re from the future and don’t have weapons).

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Posted by Ralph Losey

It’s Mueller Time! The Emergence of a New Legal Service Based on Artificial Intelligence

January 29, 2019

It’s Mueller Time! I predict we will be hearing this call around the world for decades, including boardrooms. Organizations will decide to investigate themselves on sensitive issues before the government does, or before someone sues them and triggers formal discovery. Not always, but sometimes, they will do so by appointing their own independent counsel to check on concerns. The Boards of tomorrow will not look the other way. If Robert Muller himself later showed up at their door, they would be ready. They would thank their G.C. that they had already cleaned house.

Most companies who decide it is Mueller Time, will probably not investigate themselves in the traditional “full calorie” Robert Muller way, as good as that is. Instead, they will order a less expensive, AI based investigation, a Mueller Lite. The “full calorie” traditional legal investigation is very expensive, slow and leaky. It involves many people and linear document review. The AI Assisted alternative, the Mueller Lite, will be more attractive because of its lower cost. It will still be an independent investigation, but will rely primarily on internal data and artificial intelligence, not expensive attorneys.

I call this E-Vestigations, for electronic investigations. It is a new type of legal service made possible by a specialized type of AI called “Predictive Coding” and newly perfected Hybrid Multimodal methods of machine training.

Mueller Lite E-Vestigations Save Money

Robert Mueller investigations typically cost millions and involves large teams of expensive professionals. AI Assisted investigations are cheap by comparison. That is because they emphasize company data and AI search of the data, mostly the communications, and need so few people to carry out. This new kind of investigation allows a company to quietly look into and take care of its own problems. The cost savings from litigation avoidance, and bad publicity, can be compelling. Plus it is the right thing to do..

E-Vestigations will typically be a quarter the cost of a traditional Mueller style, paper investigations. It may even be far less than that. Project fees depend on the data itself (volume and “messiness”) and the “information need” of the client (simple or complex). The competitive pricing of the new service is one reason I predict it will explode in popularity. This kind of dramatic savings is possible because most of the time consuming relevance sorting and document ranking work is delegated to the AI.

The computer “reads” or reviews at nearly the speed of light and is 100% consistent. But it has no knowledge on its own. An idiot savant. The AI cannot do anything without its human handlers and trainers. It is basically a learning machine designed to sort large collections of texts into binary sets, typically relevant or irrelevant.

The human investigators read much slower and sometimes make mistakes (plus they like to get compensated), but they are absolutely indispensable. Someday the team of humans may get even smaller, but we are already down to around seven or fewer people per investigation. Compare that to the hundreds involved in a traditional Muller style document review.

Proactive “Peace of Mind” Investigations

This new legal service allows concerned management to proactively investigate upon the first indications of possible wrong-doing. It allows you to have greater assurance that you really know what is going on in your organization. Management or the Board then retains an independent team of legal experts to conduct the quick E-Vestigation. The team provides subject matter expertise on the suspected problem and uses active machine learning to quickly search and analyze the data. They search for preliminary indications of what happened, if anything. This kind of search is ideal for sensitive legal inquiries. It gives management the information needed without breaking the bank or publicizing the results.

This New Legal Service Is Built Around AI

E-Vestigations are a pre-litigation legal service that relies heavily on artificial intelligence, but not entirely. Investigations like this are very complex. They are nowhere near a fully automated process, and as mentioned the AI is really just a learning machine that knows nothing except how to learn document relevance. The service still needs legal experts, but a much smaller team

AI assisted investigations such as E-Vestigations have five compelling positive traits:

Cost
Speed
Stealthiness
Confidentiality
Accuracy.

This article introduces the new service, discusses these five positive traits and provides background for my prediction that many organizations will order AI assisted investigations in the coming years. In fact, due to the disappearing trial, I predict that E-Vestigations will someday take the lead from Litigation in many law firms. This prediction of the future, like most, requires a preliminary journey into the past, to see the longer causal line of events. That comes next, but feel to skip the next three sections until you come to the heading, What is an E-Vestigation?

King Litigation Is Dead

The glory days of litigation are over. All trial lawyers who, like me, have lived through the last forty years of legal practice, have seen it change dramatically. Litigation has moved from a trial and discovery practice, where we saw each other daily in court, to a discovery, motion and mediation practice where we communicate by email and occasional calls.

Although some “trial dogs” will not admit it, we all know that the role of trials has greatly diminished in modern practice. Everything settles. Ninety-nine percent (99%) of federal court civil cases settle without trial. Although my current firm is a large specialty practice, and so is an exception, in most law firms trials are very rare. A so-called “Trial Practice” of a major firm could go years without having an actual trial. I have seen it happen in many law firms. Good lawyers for sure, but they do not really “do trials,” they do trial preparation.

For example, when I started practicing law in 1980 “dispute resolution” was king in most law firms. It was called the “Litigation Department” and usually attracted the top legal talent. It brought in strong revenue and big clients. Every case in the top firms was either a “Bet the Farm” type, or a little case for kiddie lawyer training, we had no form-practice. Friedmann & Brown, “Bet the Farm” Versus “Law Factory”: Which One Works? (Geeks and Law, 2011).

The opposite, “Commodity Litigation,” was rare; typically just something for some divorce lawyers, PI lawyers, criminal lawyers and bankruptcy lawyers. These were not the desired specialties in the eighties, to put it mildly. Factory like practices like that did not pay that well (honest ones anyway) and were boring to most graduates of decent law schools. This has not changed much until recently, when AI has made certain Commodity practices far more interesting and desirable. See Joshua Kubicki, The Emerging Competitive Frontier in Biglaw is Practice Venturing (Medium, 1/24/19).

Aside from the less desirable Commodity practice law firms, most litigators in the eighties would routinely take a case to trial. Fish or Cut Bait was a popular saying. Back then Mediation was virtually unknown. Although a majority of cases did eventually settle, a large minority did not. That meant physically going to court, wearing suits and ties every day, and verbal sparing. Lots of arguments and talk about evidence. Sometimes it meant some bullying and physical pushing too, if truth be told. It was a rough and tumble legal world in the eighties, made up in many parts of the U.S. almost entirely of white men. Many were smokers, including the all-white bench.

Ah, the memories. Some of the Litigation attorneys were real jerks, to put it mildly. But only a few were suspected crooked and could not be trusted. Most were honest and could be. We policed our own and word got around about a bad apple pretty fast. Their careers in town were then soon over, one way or the other. Many would just move away or, if they had roots, become businessmen. There were trials a plenty in both the criminal and civil sides.The trials could be dramatic spectacles. The big cases were intense.

Emergence of Mediation

But the times were a changing. In the nineties and first decade of the 21st Century, trials quickly disappeared. Instead, Mediation started to take over. I know, I was in the first group of lawyers ever to be certified as a Mediator of High Technology disputes in 1989. All types of cases began to settle earlier and with less preparation. I have seen cases settle at Mediation where none of the attorneys knew the facts. They just knew what their clients told them. Even more often, only one side was prepared a knew the facts. The other was just “shooting from the hip.”

At trial the unprepared were quickly demolished by the facts, the evidence. At Mediation you can get away with it. The evidence is often just one side’s contention. Why bother to learn the record when you can just BS your way through a mediation? The truth is what I say it is, nothing more. There is no cross-exam. Mediation is a “liars heaven,” although a good mediator can plow through that.

What happened to all the Trial Lawyers you might ask? Many became Mediators, including several of my good friends. A few started specializing in Mediation advocacy, where psychodrama and math are king (typically division). Mediation has become the everyday “Commodity” practice and trials are now the “Bet the Farm” rarity.

With less than one-percent of federal cases going to trial, it is a complete misnomer to keep calling ourselves Trial Lawyers. I know I have stopped calling myself that. Like it or not, that is reality. Our current system is designed to settle. It has become a relativistic opinion fest. It is not designed to determine final, binding objective truth. It is not designed to make findings of fact. It is instead designed to mediate ever more ingenious ways to split the baby. We no longer focus on the evidence, on the objective truth of what happened. We have lost our way.

Justice without Truth is Destabilizing

Justice without Truth is a mockery of Justice, a Post-Modern mockery at that, one where everything is relative. This is called Subjectivism, where one person’s truth is as good as another’s. All is opinion.

This relativistic kind of thinking was, and still is in most Universities, the dominant belief among academics. Truth is supposed to be relative and subjective, not objective, unless it happens to be science. Hard science is supposed to have a monopoly on objectivity. Unfortunately, this relativistic way of thinking has had some unintended consequences. It has led to the kind of political instability that we see in the U.S. today. That is the basic insight of a new book by Pulitzer Prize winner, Michiko Kakutani. The Death of Truth: Notes on Falsehood in the Age of Trump (Penguin, 2018). Also see Hanlin, Postmodernism didn’t cause Trump. It explains him. (Washington Post, 9/2/18).

Truth is truth. It is not just what the company with the biggest wallet says it is. It is not an opinion. Objective truth, the facts based on hard evidence, is real. It is not just an opinion. This video ad below by CNN was cited by Kakutani in her Death of Truth. It makes the case for objectivity in a simple, common sense manner. The political overtones are obvious.

There is a place for the insights of Post-Modern Subjectivism, especially as it concerns religion. But for now the objective-subjective pendulum has swung too far into the subjective. The pause between directions is over and it is starting to swing back. Facts and truth are becoming important again. This point in legal history will, I predict, be marked by the Mueller investigation. Evidence is once again starting to sing in our justice system. It is singing the body electric. The era of E-Vestigations has begun!

What are E-Vestigations?

E-Vestigations are confidential, internal investigations that focus on search of client data and metadata. They uses Artificial Intelligence to search and retrieve information relative to the client’s requested investigation, their information need. We use an AI machine training method that we call Hybrid Multimodal Predictive Coding 4.0. The basic search method is explained in the open-sourced TAR Course, but the Course does not detail how the method can be used in this kind of investigation.

E-Vestigation is done outside of Litigation and court involvement, usually to try to anticipate and avoid Litigation. Are the rumors true, or are the allegations just a bogus attempt to extort a settlement? E-Vestigations are by nature private, confidential investigations, not responses to formal discovery. AI Assisted investigations rely primarily on what the data says, not the rumors and suspicions, or even what some people say. The analysis of vast volumes of ESI is possible, even with millions of files, because e-Vestigations use Artificial Intelligence, both passive and active machine learning. Otherwise, the search of large volumes of ESI takes too long and is too prone to inaccuracies. That is the main reason this approach is far less expensive than traditional “full calorie” Muller type investigations.

The goal of E-Vestigation is to find quick answers based on the record. Interviews may not be required in many investigations and when they are, they are quick and, to the interviewee, mysterious. The answers to the information needs of a client are sometimes easily found. Sometimes you may just find the record is silent as to the issue at hand, but that silence itself often speaks volumes.

The findings and report made at the end of the E-Vestigation may clear up suspicion, or it may trigger a deeper, more detailed investigation. Sometimes the communications and other information found may require an immediate, more drastic response. One way or another, knowing provides the client with legitimate peace of mind.

The electronic evidence is most cases will be so overwhelming (we know what you said, to whom and when) that testimony will be superfluous, a formality. (We have your communications, we know what you did, we just need you to clear up a few details and help us understand how it ties into guys further up the power chain. That help will earn you a lenient plea deal.) This is what is happening right now, January 2019, with the investigation of Robert Mueller.

Defendants in criminal cases will still plea out, but based on the facts, on truth, not threats. Defendants in civil cases will do the same. So will the plaintiff in civil cases who makes unsubstantiated allegations. Facts and truth protect the innocent. Most of that information will be uncovered in computer systems. In the right hands, E-Vestigations can reveal all. It is a proactive alternative to Litigation with expensive settlements. The AI data review features of E-Vestigations make it far less expensive than a Muller investigations. Is it Mueller Time for your organization?

Robert Mueller never need ask a question of a witness to which he does not already know the answer based on the what the record said. The only real question is whether the witness will further compound their problems by lying. They often do. I have seen that several times in depositions of parties in civil cases. It is sheer joy and satisfaction for the questioner to watch the ethically challenged party sink into the questioner’s hidden traps. The “exaggerating witness” will often smile, just slightly, thinking they have you fooled, just like their own attorney. You smile back knowing their lies are now of record and they have just pounded another nail into their coffin.

E-Vestigations may lead to confrontation, even arrest, if the investigation confirms suspicions. In civil matters it may lead to employee discharge or accusations against a competitor. It may lead to an immediate out-of-court settlement. In criminal matters it may lead to indictment and an informed plea and sentencing. It may also lead to Litigation in civil matters with formal, more comprehensive discovery, but at least the E-Vestigating party will have a big head start. They will know the facts. They will know what specific information to ask for from the opposing side.

Eventually, civil suits will not be filed that often, except to memorialize a party’s agreement, such as a consent to a judgment. It will, instead, be a world where information needs are met in a timely manner and Litigation is thereby avoided. A world where, if management needs to know something, such as whether so and so is a sexual predator, they can find out, fast. A world where AI in the hands of a skilled legal team can mine internal data-banks, such as very large collections of employee emails and texts, and find hidden patterns. It may find what was suspected or may lead to surprise discoveries.

The secret mining of data, otherwise known as “reading other people’s emails without their knowledge” may seem like an egregious breach of privacy, but it is not, at least not in the U.S. under the computer use policies of most groups. Employees typically consent to this search as a condition of employment or computer use. Usually the employer owns all of the equipment searched. The employee has no ownership, nor privacy rights in the business related communications of the employer.

The use of AI assistants in investigations limits the exposure of irrelevant information to humans. First, only a few people are involved in the investigation at all because the AI does the heavy lifting. Second, the human reviewers are outside of the organization. Third, the AI does almost all of the document review. Only the AI reads all of the communications, not the lawyers. The humans look at far less than one percent of the data searched in most projects. They spend most of their time in study of the documents the AI has already identified as likely relevant.

The approach of limited investigations, of going in and out of user data only to search in separate, discreet investigations, provides maximum confidentiality to the users. The alternative, which some organizations have already adopted, is constant surveillance by AI of all communications. You can predict future behavior that way, to a point and within statistical limitations of accuracy. The police in some cities are already using constant AI surveillance to predict crimes and allocate resources accordingly.

I find this kind of constant monitoring to be distasteful. For me, it is too Big Brother and oppressive to have AI looking at my every email. It stifles creativity and, I imagine, if this was in place, would make me overly cautious in my communications. Plus, I would be very concerned about software error. If some baby AI is always on, always looking for suspicious patterns, it could make mistakes. The programming of the software almost certainly contains a number of hidden biases of the programmers, typically young white dudes.

The one-by-one investigation approach advocated here provides for more privacy protection. With E-Vestigations the surveillance is focused and time limited. It is not general and ongoing.

Five Virtues of E-Vestigations

Although I am not going to go into the proprietary details here of our E-Vestigations service (contact me through my law firm if you want to know more), I do want to share what I think are the five most important traits of our AI (robotic) assisted reviews: economics, confidentiality, stealth, speed and accuracy.

Confidentiality:

Complete Secrecy.
Artificial Intelligence means fewer people are required.
Employee Privacy Rights Respected.
Data need never leave corporate premises using specialized tools from our vendor.
Attorney-Client Privilege & Work Product protected.

Stealthiness:

Under the Radar Investigation.
Only some in client IT need know.
Sensitive projects. Discreet.
Stealth forensic copy and review of employee data.
Attorneys review off-site, unseen, via encrypted online connection.
Private interviews; only where appropriate.

Speed:

Techniques designed for quick results, early assessments.
Informal, high-level investigations. Not Litigation Discovery.
High Speed Document Review with AI help.
Example: Study of Clinton’s email server (62,320 files, 30,490 disclosed – 55,000 pgs.) is, at most, a one-week project with a first report after one day.

Accuracy:

Objective Findings and Analysis.
Independent Position.
Specialized Expertise.
Answers provided with probability range limitations.
Known Unknowns (Rumsfeld).

Clients are impressed with the cost of E-Vestigations, as compared to traditional investigations. That is important, of course, but the speed of the work is what impresses many. We produce results, use a flat fee to get there, and do so very FAST.

Certainly we can move much faster than the FBI reviewing email using its traditional methods of expert linear review. The Clinton email investigations took forever by our standards. Yet, Clinton’s email server had only 62,320 files, of which 30,490 were disclosed (around 55,000 pages.) This is, at most, a one-week E-Vestigations project with a first report after one day. Our projects are much larger. They involve review of hundreds of thousands of emails, or hundreds of millions. It does not make a big difference in cost because the AI, who works for free, is doing the heavy lifting of actual studying of all this text.

Most federal agencies, including the FBI, do not have the software, the search knowledge, nor attorney skills for this new type of AI assisted investigation. They also do not have the budget to acquire good AI for assist. Take a look at this selection from the official FBI collection of Clinton email and note that the FBI and US Attorneys office in Alexandra Virginia were communicating by fax in September 2015!

State and federal government agencies are not properly funded and cannot compete with private industry compensation. The NSA may well have an A-Team for advanced search, but not the other agencies. As we know, the NSA has their hands full just trying to keep track of the Russians and other enemies interfering with our elections, not to mention the criminals and terrorists.

Unintended Consequence of Mediation Was to Insert Subjectivism into the Law

As discussed, the rise and commoditization of Mediation over the last twenty years has had unintended consequences. The move from the courtroom to the mediator’s office in turn caused the Law to move from objective to subjective opinion. Discussion of the consequences of mediation, and the subjectivist attitude it brings, complicates my analysis of the death of Litigation, but is necessary. Litigation did not turn into private investigation work. One did not flow into another. Litigation is not changing directly into private Investigations, AI assisted or not. Mediation, and its unexpected consequences, is the intervening stage.

1. Litigation → 2. Mediation → 3. AI Assisted Investigations

Mediation brought down Litigation, at least the all important Trial part of Litigation, not AI or private investigations. There is never a judge making rulings at a mediation. There are only attorneys and assertions of what. Somebody must be lying, but with Mediation you never know who. Lawyers found they could settle cases without all that. They did not need the judge at all. At mediation there are no findings of fact, no rulings of law, just droll agreements as to who will pay how much to whom.

The next stage I predict of AI Assisted Investigations is filling a gap caused by the unintended consequence of Mediation. Mediation was never intended to spawn AI Assisted Investigations, no such thing even existed. It was not possible. We did not have the technology to do something like this. The forces driving the advent of AI Assisted Investigations, which I call E-Vestigations, have little to do with Mediation directly, but are instead the result of rapid advances in technology.

Mediation was intended to encourage settlement and reduce expensive trials. It has been wildly successful at that; exceeded all expectations. But this surprise success has also led to unexpected negative consequences. It has led to a new subjectivistic attitude in Litigation. It has led to the decline of evidence and an over-relativistic attitude where Truth was dethroned.

Most of my Mediator friends strongly disagree, but I have never heard a compelling argument to the contrary. The death of the trial is a stunning development. But mediation has had another impact. One that I have not seen discussed previously. It has not only killed trials, it has killed the whole notion of objective truth. It has led to a mediation mind-set where the “merits” are just a matter of opinion. Where cost of defense and the time value of money are the main items of discussion.

That foreseeable defect has led to the unforeseeable development of an AI Assisted alternative to Litigation. It is led to E-Vestigations. AI can now be used to help lawyers investigate and quickly find out the true facts of a situation.

Many lawyers who litigate today do not care what “really happened.” Very post-modern of them, but come on? A few lawyers just blindly believe whatever damned fool thing their client tells them. Most just say we will never know the absolute truth anyway, so let us just try our best to resolve the dispute and do what’s fair without any test of the evidence. They try to do justice with just a passing nod to the evidence, to the truth of what happened. I am not a fan. It goes against all of my core teachings as a young commercial litigation attorney who prepared and tried cases. It goes against my core values and belief. My opinion is that it is not all just opinion, that there is truth.

I object to that mediation, relativistic approach. After a life in the Law chasing smoking guns and taking depositions, I know for a fact that witnesses lie, that their memories are unreliable, all too human. But I also know that the writings made by and to these same witness often expose the lies, or, more charitably put, expose the errors in human memory. Fraudsters are human and almost always make mistakes. It is an investigator’s job to check the record to find the slip-ups in the con. (I dread the day when I have to try to trace a AI fraudster!)

I have been chasing and exposing con-men most of my adult life. I defended a few too. In my experience the truth has a way of finding its way out.

This is not an idealistic dream in today’s world of information floods. There is so much information, the real difficulty is in finding the important bits, the smoking guns, the needles. The evidence is usually there, but not yet found. The real challenge today is not in gathering the evidence, it is in searching for the key documents, finding the signal in the noise.

Conclusion

Objective accounts of what happened in the past are not only possible, they are probable in today’s Big Data world. Your Alexa or Google speakers may have part of the record. So too may your iWatch or Fitbit. Soon your refrigerator will too. Data is everywhere. Privacy is often an illusion. (Sigh.) The opportunity of liars and other scoundrels to “get away with it” and fool people is growing smaller every day. Fortunately, if lawyers can just learn a few new evidence search skills, they can use AI to help them find the information they need.

Juries and judges, for the most part, believe in objective truth. They are quite capable of sorting through competing versions and getting at the truth. Good judges and lawyers (and jurors) can make sure that happens.

As mentioned, many academics and sophisticates believe otherwise, that there is no such a thing as objective truth. They believe instead in Relativism. They are wrong.

As Michiko Kakutani said in her book, The Death of Truth:

The postmodernist argument that all truths are partial (and a function of one’s perspective) led to the related argument that there are many legitimate ways to understand or represent an event. . . .

Without commonly agreed-upon facts — not Republican facts and Democratic facts; not the alternative facts of today’s silo-world — there can be no rational debate over policies, no substantive means of evaluating candidates for political office, and no way to hold elected officials accountable to the people. Without truth, democracy is hobbled. The founders recognized this, and those seeking democracy’s survival must recognize it today.

It is possible to find the truth, objective truth. All is not just opinion and allegations. Accurate forensic reconstruction is possible today in ways that we could never have imagined before. So is AI assisted search. The record of what is happening grows larger every day. That record written electronically at the time of the events in question is far more reliable than our memories. We can find the truth, but for that need to look primarily to the documents, not the testimony. That is not new. That is wisdom upon which almost all trial lawyers agree.

The truth is attainable, but requires dedication and skilled efforts by everyone on a legal team to find it. It requires knowledge of course, and a proven method, but also impartiality, discipline, intelligence and a sense of empathy. It requires experience with what the AI can do, and just as important, what it cannot do. It requires common sense. Lawyers have that. Jurors have that.

Surely only a weak-minded minority are fooled by today’s televised liars. Most competent trial lawyers could persuade a sequestered jury to convict them. And convict they will, but that still will not cause of rebirth of Litigation. Its’ glory days are over. So too is its killer, Mediation, although its death will take longer (Mediation may not even have peaked yet).

Evidence speaks louder than any skilled mediator. Let the truth be told. Let the chips fall where they may. King Litigation is dead. Long live the new King, confidential, internal AI assisted E-Vestigations.