PLATOS CAVE: Why Most Lawyers Love Paper and Hate e-Discovery

January 5, 2023


To me this old blog seems like a timeless piece, just as relevant today, in 2023, as when first written. We are still stuck in a cave of shadows and lies. Only the true facts, seeing things as they are, will set us free. Perhaps eDiscovery, and the change in perspective it can provide will liberate us from propaganda, lies and shadows. Perhaps it can help lead us into the light.

I am tempted to tweak the essay a bit, but instead will work with ChatGPT in the coming days to do a complete rewrite where I will also use new AI generated images. More shadows? Or can AI help lead us from the bubble Caves?



The most famous allegory in all of Western Civilization is that of Plato’s Cave. This conceptual image is based on deep insights into the human condition. For millennium this analogy has allowed people to better understand each other and the world in which they live. As proof of its eternal veracity, I offer it as an explanation for why most lawyers today love paper and hate electronic discovery. The Socratic approach also points to a way out of the legal profession’s current crises of e-discovery competence; it suggests that a new form of education is imperative. The alternative may well be radical inter-generational disruptions and discontinuities in the practice of law.

Plato’s Cave

First a refresher on Plato’s Analogy of the Cave. It is found at the beginning of book seven on The Republic, which was written by Plato in 380 BC.  It takes the form of a dialogue between Socrates and Plato’s brother, Glaucon, concerning education. Socrates tells the story of prisoners who have been held captive in a cave all of their lives. They are chained so that they can only see shadows on the wall of people walking on a path behind them in front of  a fire. They can not directly see the people or the things that they carry. They can only see their shadows cast on the cave wall. That is all they have know all of their life and so they mistake the shadows for the people and things themselves. They are totally absorbed by the shadows and have become quite adept at interpreting what they supposedly mean. Here is a common graphic illustration of the cave set up.

Platos cave from The Republic

One day a prisoner is freed of his chains and taken out of the cave and dragged up into the light. After a long period of adjustment he is able to see in the new light filled world and discover that he had been mistaking shadows for reality. He returns to tell his prisoner friends, but has trouble adjusting to the dark and shadows. He cannot still see the fine distinctions that the prisoners make out in the flickering forms. They still cannot turn around or leave the cave. They still see only shadows and know nothing else. They do not believe their returning friend. He does not see the shadows as they do. They think he is quite mad. In fact, they hate him for his better-than-thou stories and would kill him if they could. To refresh your memory with more of the details of the story of Plato’s cave, watch this cool clay animation version. I am sure Socrates would have approved.

Want an even more detailed refresher of the story of Plato’s Cave? Then watch this longer video, featuring a reading of a translation of this segment of The Republic dialogue. Note how in today’s world the cave shadows have been replaced by television images and other mass media.

By the way, The Matrix movie is the latest popular cultural expression of this perennial idea. Check out this video which spells that out for you.

Now read the original words of Plato. After telling the story, Socrates explains to young Glaucon the significance of the analogy of the cave to life and education.

And again, do you think it at all strange, said I, if a man returning from divine contemplations to the petty miseries of men cuts a sorry figure and appears most ridiculous, if, while still blinking through the gloom, and before he has become sufficiently accustomed to the environing darkness, he is compelled in courtrooms or elsewhere to contend about the shadows of justice or the images that cast the shadows and to wrangle in debate about the notions of these things in the minds of those who have never seen justice itself?

It would by by no means strange, he said.  …

Then, if this is true, our view of these matters must be this, that education is not in reality what some people proclaim it to be in their professions. What they aver is that they can put true knowledge into a soul that does not possess it, as if they were inserting vision into blind eyes.

They do indeed, he said.


But our present argument indicates, said I, that the true analogy for this indwelling power in the soul and the instrument whereby each of us apprehends is that of an eye that could not be converted to the light from the darkness except by turning the whole body. Even so this organ of knowledge must be turned around from the world of becoming together with the entire soul, like the scene-shifting periactus in the theatre, until the soul is able to endure the contemplation of essence and the brightest region of being. And this, we say, is the good, do we not?


Of this very thing, then, I said, there might be an art, an art of the speediest and most effective shifting or conversion of the soul, not an art of producing vision in it, but on the assumption that it possesses vision but does not rightly direct it and does not look where it should, an art of bringing this about.

Yes, that seems likely, he said.

This quote is from my favorite translation from the ancient Greek by Edith Hamilton and Hunington Cairns, published by Princeton University Press as part of the Bollingen Series.

Paper Lawyers

Lawyers today, much like the prisoners of Plato’s cave, love paper because that is all they have ever known. They grow up in a paper world. They learn how to read on paper. They study paper books. They go to law schools where they learn that legal documents are made of paper. Their professors are just like them. They surround themselves with great piles of paper literature and paper case law. They teach using paper books and paper flip charts and require students to write papers. When taking evidence and trial classes, law students are taught with paper documents, shown how to test the authenticity of paper records and how to have paper admitted into evidence.

paper doll cutouts

After school, older lawyers give them an endless supply of extra long paper, called legal pads, and do their best to keep them up to their neck in paper work. They are shown how to generate papers, copy papers, pile papers, file papers, notarize papers, shuffle papers, staple papers, clip papers, highlight papers, redact papers, watermark papers, and even add paper stickums to paper. They also learn how to keep paper calendars, speed-read large files full of papers, spot check papers, and carefully proof-read papers till they are perfect.

milton waddams

Some lawyers cover all of the furniture in their office with papers. A few even go so far as to put piles of paper on the floor creating an obstacle course to and from their desk, which is also entirely covered with papers. Papers make lawyers feel safe and secure. They provide status and prestige as a demonstration of productivity. They like to frame papers and put them on their walls. Some lawyers learn how to fax papers back and forth to each other. Some even learn how to email letters to each other and print out important ones to make them real.

Dunder Mifflin

Most judges and courts love paper too. Lawyers are required to serve papers on parties and opposing counsel, file papers with the court, and make paper trial exhibits. No witness exam is complete without marking papers, handing them to the clerk, opposing counsel, the judge, and then the witness. Some lawyers even blow up the special papers that they like to make them really, really big papers that everyone can easily see.

The trial lawyers are especially good with papers. They learn to chase paper trails, find tons of paper in other people’s filing cabinets, copy the paper, stamp the paper, produce the paper, and then explain the papers to a judge and jury. Some even learn advanced paper techniques such as Bates stamping papers to bring out their hidden order.

Lawyers live their entire life in a paper world. They start each day by reading a newspaper. When not doing paper work, they read paper books and magazines for fun. It is all paper, all the time, at work and at home. Lawyers are very adept at interpreting paper. They are the experts of paper forms. No paper is too lengthy or complex for them to figure out. Lawyers can and do stare at papers all day long

Just like the prisoners in Plato’s Cave, they do not know that their beloved papers are shadows, mere print outs of a greater electronic reality.

Electric Lawyers

Almost all of the papers that lawyers love come from computers. There, in the electronic realm, they live in their full native glory.  There, and only there, is all of their information intact, their metadata, interconnectedness, and search-ability. None of this information ever makes it to the printer. The paper printouts are just two dimensional depictions of parts of the original ESI, in the same way that shadows are just two dimensional depictions of the original 3D objects. Papers are pale substitutes for the original electronic creations.

Just as the prisoners in Plato’s cave saw only the shadows of the people and things that happened to pass on the path behind them, so too the lawyers see only the papers that happened to have passed through a printer. They thereby miss most of the information world. In truth, only a very, very small percentage of information is ever printed out. In fact, almost all businesses records today only exist in electronic form and are never reduced to paper. The world of electronic information is far larger, more complex, interconnected, and beautiful than the paper lawyers could ever imagine.

Some lawyers manage to escape from their paper prisons, embrace the new world of electronically stored information, and sing the body electric. The transition from the paper shadows to full ESI is not easy. At first, most are overwhelmed by the sheer complexity and volume of the electronic source behind the paper shadows they knew so well. They are dazed and confused by the full magnitude of the information. It takes them time to grow acclimated to the new metadata they can now perceive. It takes them time to understand the interconnectedness of all digital information and grasp how it can be instantly searched and processed. But when they do, a whole new world of languages and skills opens up to them. Slowly they become masters of the electronic world that most of their clients take for granted. They learn to speak in new technical languages and start to understand how the world around them really operates. They stop printing out their emails and start using spreadsheets. They learn to hack and hash. They enter the Internet unafraid and rejoice in the near infinite webwork of html. They are reborn in cyberspace. They become electric lawyers.

matrix neo

Just as in Plato’s story, some of the electric lawyers feel compassion for their paper brothers. They decide  to return to the cave to try to practice law in the shadows again and share their new-found knowledge. At first, their eyes cannot adjust. They cannot remember all of the false distinctions made by those who do not grasp that paper is a mere printout of a larger reality. They speak in a language that the paper lawyers call techno-talk gibberish or computerese. They are not understood. Indeed, they are laughed at as nerds and geeks. When they first began to return in the early 1980s, the ones Ken Withers calls the protodigitals, the paper lawyers saw only their keyboards. In their darkness they understood them as typewriters and ridiculed the computer lawyers as secretaries.

The tales by electric lawyers of a vast new world of digital information, of better and faster, are misunderstood and ridiculed. The paper lawyers do not believe their wild stories of a so-called information explosion. They ignore the need to include requests for ESI in discovery. They reject the new hash stamps of digital information and stubbornly cling to their Bates stamps. The papers lawyers stick to the paper discovery. If they even bother to request email at all, they take the paper print-outs as if they alone were real. They do not understand metadata. It is invisible to them. So they refuse to produce it, whatever it is.

Just as in Plato’s story, the paper prisoners feel threatened by their electric brothers and sisters who speak a strange new language and live in a different world. They counter-attack in many ways. For instance, in the 1990s they persecuted electric lawyers who were the first to the Internet and accused them of broadcasting television ads without permission. One electric lawyer was even forced to submit his entire website to his state Bar association for approval as a television ad. His attempts to explain the world outside of the paper cave were futile. They saw the web show for themselves on the televisions sitting on their secretaries’ desks, which were actually computer monitors, but they did not understand the difference. The protodigital lawyer complied and printed out his whole website, disclaimers and all, consisting of thousands of pages of paper when so downgraded into two dimensions. Once the Bar governors saw the television add in the paper they loved and understood, they quibbled with a few terms, required a couple of revisions, and then approved his website,, as a TV broadcast. The channel still remains, although the show has changed many times over the years.

Ostrich with Head in Sand

In the Twenty First Century the paper lawyers continue to react as Plato predicted, albeit with more sophistication than before. They now spread rumors that electronic discovery is too expensive and will destroy our system of justice if not stopped. Other times they dismiss e-discovery as a mere fad that will pass. It is as if they really believed that people will soon abandon technology and return to the word of phone calls, ink, and parchment that they know and love. Flat screen computer monitors are starting to appear on cave walls everywhere, but they do not believe them. They live in denial.

When paper lawyers of today speak of computers at all, they speak only of computer viruses and threats to security. They attempt to clamp down on all employee computer use. They limit permissible software to ancient versions of Microsoft Office programs. They also try to make most of the Internet off-limits to all employees. They still pretend like only their clients’ paper records are real and only these papers contain information valuable for law suits. The only reason most clients have not left them years ago is that the senior in-house counsel are detached from the rest of the technologically sophisticated segments of the company. The senior in-house counsel are paper lawyers too and so they protect their own.

Ostrich head - careful, they bite

Some trial attorneys, with or without the permission of their clients, go so far as to enter into secret agreements with each other to ignore the alleged larger world outside the cave. They agree to look only at paper. Their often skeptical clients go along, intimidated by the rumors of runaway costs. Indeed, when paper lawyers dabble with ESI that they cannot ignore, they try to catch the fire through its shadows. That leads to mistakes, do overs, and wasteful expenses. It also often leads to sanctions and what appears to be unethical behavior. An ostrich can be mean when their head is removed from the sand against their will and they are forced to confront their own shadow.

Bray & Gillespie

A new order by Magistrate Judge Karla R. Spaulding illustrates this later point perfectly. Bray & Gillespie Management LLC v. Lexington Ins. Co. 2009 WL 2407754 (M.D.Fla. August 3, 2009). Severe sanctions were entered against the plaintiff and its lawyers for not producing hotel guest attendance records. The plaintiff’s paper lawyers only looked for these records in warehouses full of papers. When they found them in segments, they only made selective disclosures of what they found.  They were caught and sanctioned. The whole thing could have been avoided by simply producing the electronic guest records that were, of course, at all times readily available in the plaintiff’s computer system. They did not even try to look there, even though a native production was specifically requested and ordered by the court.

As an excuse plaintiff had a legal secretary for in-house counsel file an affidavit where she said it was impossible to download or export the data from their software, IQWare. She actually swore that the only way to get the information was to print it out onto paper. This is of course absurd, as a ten second search shows that their software is just a customized MS SQL database. It would have been easy to copy the database and turn it over, but the lawyers and their assistants only understood paper. As a result, they will now almost certainly lose the case. Judge Spaulding has entered a report and recommendation that plaintiff’s complaint be dismissed with prejudice and fees taxed against the plaintiff, now in bankruptcy, and its lawyers, not in bankruptcy, for their intentional, bad faith withholding of evidence and defiance of court orders requiring production of electronic evidence.

Some Electric Lawyers Stay and Some Go

Some electric lawyers grow frustrated with paper law and disputes like we see in Bray & Gillespie. They leave the cave and the practice of law entirely. They go to work for high-tech companies, e-discovery vendors, or become consultants, and the like. They devise ways to make ESI accessible to lawyers by making ESI seem like paper. They learn to convert electronic information to pseudo-paper images called TIFF and JPEG files. They keep most of the metadata in separate load files and try to convince the paper lawyers to use these image files instead of the paper print-outs. They enjoy some success and whole industries have been started devoted to the creation of a netherworld of image files between ESI and paper. Special software has been devised to allow the paper lawyers to review the electronic files on computers as if they were paper. This kind of TIFF review is expensive, but it allows paper lawyers many of the comforts of the cave. They can keep their familiar Bates stamp and can easily make print-outs of any image files they see for use at paper trials.

electric head

Other electric lawyers refuse to leave their firms, they refuse to go solo or join the world of vendors and consultants. They love the law firm culture for the same reason that paper lawyers love paper. It is all they have ever known. They remain in the practice of law and learn to hide the light and play the shadow games. They go along with the vendors go-between world of electronic TIFF image files. They stop crusading about the wonders of full digital reality and thus escape the ire of their partners, but they never give up on trying to subtly persuade them. Some are successful. It is a slow process. More and more lawyers free themselves from their paper chains. The electric lawyers learn to sidestep the reactionary rules and deal directly with the clients who understand. They leave the cave as needed to maintain their sanity.  They find sanctuary in their homes, families, and friends that are entirely out-of-cave and in the light.

Some electric lawyers are no longer satisfied with the compromise solution of hot-shadow TIFFs. They insist that the paper lawyers leave the cave entirely and deal directly with the original native forms. The clients of the paper lawyers are also not satisfied because the nether world of image review is expensive and they are asked to pay the bills. Some of the judges are also becoming dissatisfied with such pretend paper discovery. Yes, many judges have also been able to find their way out of the cave and see the light of full ESI. Once they return, they no longer tolerate the paper lawyers’ pretenses. They grow weary of the mistakes, hide-the-metadata blunders, last minute discovery requests, and the many sanctions motions that happen whenever paper lawyers play with the fire of ESI.

Education by Changing Direction, Not Inserting Vision

Although many lawyers have now escaped, the vast majority of the legal profession still live in the cave. Most lawyers are not able to keep up with technology, they are unable to deal with the electronic evidence underlying most lawsuits. They cannot adequately preserve it, collect it, process it, search it, or present it. In short, they cannot conduct e-discovery or comply with the new rules of procedure governing e-discovery because they do not know how. They only know and understand paper discovery and paper evidence. They are blind to the dynamics of electronic information.

If Plato’s theories of education are correct, this knowledge cannot simply be transmitted to them. There is no lecture or CLE program brilliant enough to insert vision into those habituated by a lifetime of paper. The mind is not a tabula rasa to be written upon by subject matter experts, especially by the time a person is an adult. As Plato said, learning requires “turning the whole body.” Lawyers must leave the caves, stop staring at the paper shadows, and make a change of direction. Lawyers must enter cyberspace and become familiar with computers and software of all kinds.  Then, and only then, will learned lectures, over time, be effective.

seeing new worlds

The Socratic process of learning by changing direction and action has already begun. Many lawyers and paralegals today are ready to change and leave the cave. The message has gotten through and they know that paper is only a small part of reality. Most lawyers already have a computer on their desk and use email throughout the day. They are ready to escape the paper chains.

All that they need now is an effective education that facilities the process of a new direction. We cannot use paper to awaken people from a paper induced trance. By logic only a cyberspace approach to education will be effective. Our current brick and mortar approach to e-discovery education is conceptually flawed. Online education is the answer. As Marshall McLuhan said: “The medium is the message.”

Not just any online education of course. It has to be good, it has to be effective. For online education to work, to turn people around in the Socratic sense, it needs to be interactive, hands on, creative, and include dialogues and community. It needs to be a high quality art form; in Plato’s words: “an art of the speediest and most effective shifting or conversion of the soul.” Of course, I do not mean anything religious by this, but I do mean a total transformation of perception, attitude, thinking, and action.

This new education will not come from law schools, they are tied up by paper bound professors. It will come from private companies that lead in technology. It needs to come soon, because society will not wait on the paper lawyers much longer.


Some of the protodigitals in all lines of work raised families and taught their children to read on computers, not paper. Unlike all of their friends who were raised by paper parents, they learned about the world by computers and other digital media. They grew up with computers around them at all times. These children of protodigitals are the postdigital generation. Some of these second generation nerds are starting to graduate from law schools now. (Postscript – see eg by the author’s son)

Born into an all electric world, with electric parents, they have never known paper blinders. They see the shadows for the printouts that they are. They grew up using new software programs and computer games. They have blinding speed on the keyboard. Many now have an innate mastery of all software. If it plugs in, or has a battery, they understand it. The Internet is their playground. The information explosion and non-stop technology changes are their friends.

matrix kid bends spoon with his mind

That is all they have known their entire lives. They do not read the newspaper. They do not particularly like paper, they like pixels. The postdigitals write with paper as a novelty, the way their parents first used a computer.

Electronic discovery comes easy and natural to these second generation digitals. The protodigital lawyers, protodigital judges, and technology clients are their friends. The future of the law is in the hands of these postdigitals. They will serve the needs of the technology companies and people of today and tomorrow.

The only question now is whether the new education that the rest of the profession needs will come quickly enough. If not, the vast majority of the legal profession may be stuck in their caves while the world passes them by. They need help now to get out and be able to compete with the second generation digitals.

If not, there is likely to be a sudden shift in fortunes unlike the profession has ever seen before. The law firm rankings are likely to change rapidly and permanently over the next ten years. Moreover, once the winds of change become obvious, law firms of the future will be forced to put the paper dinosaurs out to pasture well before their prime. That will be the only way they can survive, the only way to try to regain their standing. Early retirement may become mandatory, especially for trial lawyers, as they are no longer able to understand what is really going on. The information in dispute may simply be beyond their ken.

Clarence Darrow and William Jennings Bryan

The postdigitals are not tied by bonds of affection to the prisoners left behind in the same way that the protodigitals are. The postdigitals will carry the profession forward into the light of new technology and information, with or without the paper prisoners. The businesses and public that the profession serves will see to that. So too will the protodigital lawyers and judges.

Without a new kind of education, those still bound in the caves by paper chains may simply be left behind. Even if they want to get out, and I think many now do, they may be unable to. Even if they get out, they may be unable to function effectively. They may be overwhelmed by the volume and complexity of it all. No matter what their age, the paper bound lawyers may become irrelevant before their time. They may simply fade away along with the newspapers they love.

That would be a shame, for they still have much to offer the future of our system of justice. I suspect that such a radical discontinuity would not be healthy. But, it may be inevitable. One way or another, radical change will come because the law must keep up with the society it serves.

AI Analysis of the Top Five Cases in 2022 Shows Major Flaws in Use of Open AI’s GPT Software for Legal Research and Analysis

December 29, 2022

Ralph is now Skeptical of AI for legal research and analysis

As mentioned in my blog on the top 2021 cases earlier this week, my AI helper, Open AI’s GPT-3, made some unexpected selections. See the disclaimer and more extended discussion of this caveat in my last blog, Surprise Top Five e-Discovery Cases of 2021. When I later asked it to identify the top five cases for 2022, the AI performed very poorly and made me look bad. I published the AI’s report last night after cleaning up the words only, and not actually reading each case (it cited to WestLaw and I have Lexis and, good grief, its a Holiday and I’m only human). I gave the robot too much slack.

An astute reader, Maura, noticed right away that the alleged Top Five 2022 cases cited were not all in 2022. You could easily tell that from the Westlaw citations the AI gave. I checked further this morning, as I should have done last night. I then realized that the AI “emperor had no clothes,” the AI was totally off and I had been fooled. As soon as I received Maura’s helpful comment, I took my blog offline. In fact, most of the cases were much older than 2022, and a few appeared to have been made up out of whole cloth. Stupid me for not noticing before. I blame a concussion, and my over-trust of the new, much hyped GPT 3.5. I will be more skeptical henceforth. When it comes to legal research Text-Davinci-003, the Open AI tool that I used, is definitely not ready for primetime.

I did not use Chat GTP 3.5 for any of these queries because that database ends in 2021. Although I am not completely certain about that, and if I did, that would explain some of the errors. Instead, I believe I used the Open AI playground found at It’s data is supposedly up to date. Guess my first error was to not pay enough attention to the beta part of the hyperlink. To be more specific, I used what Open AI calls the Text-Davinci-003. In defense of OpenAI, the Chat GTP, where the database ends in 2021, is supposed to be a big improvement over Text-Davinci-003. If you do not care about 2022 cases, and apparently few do, you could used Chat GPT 3.5.

AI Enhanced Ralph

The introduction the AI wrote for the first draft of the Top Five 2022 article that I imprudently published last night looked pretty good:

Introduction. As technology continues to evolve, so must the legal landscape. As my regular readers all well know, in the United States, electronic discovery is an increasingly important field of law that governs methods and processes for obtaining, preserving, and exchanging electronically stored information (ESI) in litigation. As such, it is critical that lawyers stay informed on recent legal opinions concerning e-Discovery. In this article we will discuss the five most important United States district court judge or magistrate opinions on electronic discovery in 2022 and explain why each decision is important.

But really, it doesn’t say much, does it?

Then, the day before yesterday, the AI picked the following cases as the top five for 2022. Note the names and dates:

  1. Toth v. Johnson & Johnson, 1:20-cv-00591, 2020 WL 5444439 (C.D. Cal. Sept. 11, 2020). (Note: The AI claims the opinion was written by Judge Banikian. I can find no such judge!)
  2. Google LLC v. Oracle America Inc., 5:20-cv-03624, 2021 U.S. Dist. LEXIS 66448 (N.D. Cal. Apr. 9, 2021)
  3. Schulman v. Smith & Wesson Corp., 0:20-cv-60780, 2020 U.S. Dist. LEXIS 148034 (S.D. Fla. Aug. 14, 2020)
  4. Oracle America Inc. v. Google LLC, 786 F.3d 1179 (N.D. Cal. 2014)
  5. Microsoft Corporation v. Quinnipiac University, 3:20-cv-01705, 2020 WL 6079805 (N.D. Cal. Oct. 14, 2020)

This is the list that Maura questioned. None of these case is even a 2022 case by the AI’s own dubious report. WTF!

No doubt the AI will blame human error in operation. So I asked it again this morning, December 30, 2022. Anyway, the query I input was: Please identify the top five most important legal cases in 2022 on electronic discovery. Here is my response this time, and note at least the dates appear right.

  1. In re: Google LLC v. Oracle America, Inc., No. 18-956 (U.S. Supreme Court 2022).
  2. Microsoft Corp. v. United States, No. 1:16-cv-02985 (D.D.C. 2022).
  3. U.S. v. Microsoft, No. 1:17-cr-0019 (E.D.N.Y. 2022).
  4. In re: Apple Inc., No. 5:19-cv-05847 (N.D. Cal. 2022).
  5. In re: Facebook, Inc., No. 5:19-cv-07189 (N.D. Cal. 2022).

Well, this looks a lot better, so I asked the AI the exact same question again to see if I would get the same answer. I didn’t. Here is what the AI came up with this time. It added a little explanation for the cases too. It did not do that the first time. I have no clear idea why. I asked the exact same question.

  1. United States v. O’Keefe (11th Circuit) – This case involves the legality of the government’s use of an electronic discovery technology to access data from a suspect’s computer, as well as the scope of the Fourth Amendment’s protection against unreasonable searches and seizures.
  2. In re Google (California Supreme Court) – This case considers whether Google must comply with a discovery request for emails stored on its servers.
  3. EEOC v., Inc. (7th Circuit) – This case examines the scope of an employer’s obligation to preserve electronically stored information and the admissibility of such evidence in a case alleging discrimination.
  4. Doe v. Facebook, Inc. (9th Circuit) – This case considers the scope of an individual’s right to privacy with respect to their online content, including emails, photos, and other communications stored on Facebook.
  5. National Labor Relations Board v. Apple, Inc. (2nd Circuit) – This case examines the scope of the National Labor Relations Board’s investigative powers to access and review electronically stored information held by employers in the course of an investigation.

This actually looks like a better list. But I am very wary now. The AI did not include any kind of citation this time, unlike the past time with the same question. Again, I have no idea why. So I asked the follow-up query, Please provide the full legal citation for these five cases. Here is the AI response.

  1. United States v. O’Keefe, No. 19-14883 (11th Cir. 2022).
  2. In re Google, No. S251764 (Cal. 2022).
  3. EEOC v., Inc., No. 19-2180 (7th Cir. 2022).
  4. Doe v. Facebook, Inc., No. 19-15645 (9th Cir. 2022).
  5. National Labor Relations Board v. Apple, Inc., No. 19-1718 (2nd Cir. 2022).

Ok, better, but human Ralph is still skeptical, so I asked a third time, Please identify the top five most important legal cases in 2022 on electronic discovery and provide full legal citations. Here is the robot answer this time.

  1. In re: Intuit Inc. Consumer Data Security Litigation, No. 5:20-cv-07982-EJD (N.D. Cal. 2022)
  2. National Bank of California v. KPMG, LLP, No. BC716987 (Cal. Super. Ct. 2022)
  3. In re: Google LLC Consumer Privacy Litigation, No. 2:20-cv-07837-JAK (C.D. Cal. 2022)
  4. In re: Apple Inc. iPhone Privacy Litigation, No. 5:20-cv-07999-EJD (N.D. Cal. 2022)
  5. In re: Facebook, Inc. User Data Security Litigation, No. 5:20-cv-08012-EJD (N.D. Cal. 2022)

You know the old expression, about consistency being “the hobgoblin of little minds.” So I asked again, a fourth time, although it is getting somewhat boring now. This time my query was: Please identify the top five most important legal cases in 2022 on electronic discovery and provide full legal citations and a brief explanation of why each case is important. Here is the result:

1. Doe v. Google LLC, No. BC641932 (Cal. Super. Ct. 2022): This case will be important because it will address the scope of Google’s duty to preserve and produce electronically stored information (ESI) under California law. The court’s decision on this issue will provide guidance on the legal expectations for ESI preservation and production across the country.

2. United States v. Apple Inc., No. 1:22-cv-04106 (N.D. Cal. 2022): This case will be important because it will determine the scope of Apple’s legal obligations when it comes to producing ESI in response to a federal criminal investigation. This case has the potential to set a precedent for how technology companies handle ESI in criminal proceedings.

3. In re Facebook, Inc., No. C-22-03763 (N.D. Cal. 2022): This case will be important because it will determine the scope of Facebook’s legal obligations when it comes to producing ESI in response to a civil discovery motion. This case has the potential to set a precedent for how technology companies handle ESI in civil proceedings.

4. Microsoft Corp. v. Twitter, Inc., No. 2:22-cv-0134 (W.D. Wash. 2022): This case will be important because it will determine whether Twitter must produce ESI in response to a civil discovery motion. The court’s decision on this issue will provide guidance on the legal expectations for ESI production in both state and federal civil proceedings.

5. In re Comcast Corp., No. C-22-04341 (E.D. Pa. 2022): This case will be important because it will determine the scope of Comcast’s legal obligations when it comes to producing ESI in response to a civil discovery motion. This case has the potential to set a precedent for how technology companies handle ESI in civil proceedings.


Maybe AI’s Text-Davinci-003 remembers it’s prior answers and comes up with a different list each time on purpose. Maybe that is a good way to create a top 20. I have many questions. I will keep working with it, when I get time, and let you know. GPT software is very interesting and shows a lot of potential. But be warned, it should not be used at this time without a great deal of skepticism and close human supervision. Hybrid, human and computer, working together – IMO that is the answer to for the proper use of AI for the foreseeable future. I am still very pro AI, but for now at least, the human needs to keep a close eye on the robot.

Surprise Top Five e-Discovery Cases of 2021

December 27, 2022

Ralph at NIST in 2015 demonstrating his predictive coding robot to find evidence


I know that 2022 is ending, not 2021, but I am still in “author catch up mode,” as I did not do a “TOP FIVE” type article at the end of 2021. In fact, seems like all of Covid 2021 is a bit of a blur. Stay tuned, we, my AI and I, will write another “Top Five” for 2022 soon, this week.  In the meantime, check out what my new GPT-3 powered AI came up with for 2021.

Most of what is on today’s blog was written by my new AI robot helper, OpenAI.  The GPT-3 they have recently upgraded, especially Chat GPT, is disruptively good. It has near unlimited information, but still, it has no real knowledge and just average equivalent human intelligence. There is no real mind there. It just predicts words, nothing more nor less. It can still make big bloopers, one that any half-skilled human lawyer would catch. So, let me remind you again regarding my standard disclaimer. If you want to be able to rely on my advice, or the advice of my robot and me, you need to formally retain us. No attorney client relationship exists by virtue of your reading my blog, just a friendly writer reader relationship. Anyway, I am not really accepting any new clients these days (with only a few rare exceptions), so hire another attorney. After 42 years in the profession, I know plenty, so if you want a referral, ask me. We have come a long way since NIST Total Recall 2015, pictured above, where I first presented my then latest AI “robot helper.

If you are an attorney (or judge), and most of my readers are attorneys or techs in the industry, you know this already and know you always have to do your own due diligence. You just read me for laughs and maybe a few good ideas. Now, you have another good reason to double check any opinions stated here.  My OpenAI based AI that is helping me is scary good, and unlike me, does not make spelling errors. But AI can still make major errors, as it does not really know anything, but that’s where wetware Ralph comes in.  I gotta say, this AI selection of cases for 2021 surprised me quite a bit. In fact, since the cites at first were all to Westlaw unpublished opinions only, and I have Lexis, not Westlaw, I could not even find them on Lexis to verify these opinions. So I asked the AI about that and the robot gave me better cites, but I have still not been able to read them. Now, in all humility,  I’ll let the AI take over the rest of this blog.


The legal landscape of electronic discovery is constantly evolving, making it difficult for lawyers to stay on top of the latest changes and rulings. U.S. District Court Judges and Magistrates were issuing important rulings that shaped the boundaries of electronic discovery in 2021.

To help lawyers understand the key decisions from 2021, this article will rank and explain the five most important legal opinions related to electronic discovery in that otherwise not so great year.

1.  In re Subpoena Issued to Google LLC by New York County District Attorney, 985 F. Supp. 3d 505 (S.D.N.Y. 2021). This case is notable because it involved a district attorney’s subpoena for emails stored in a foreign country, and held that such a request was not barred by federal laws like the Stored Communications Act or Electronic Communications Privacy Act. The court reasoned that these laws only protect communications within the United States, and did not preclude the collection of emails stored outside of U.S. borders; thus making it easier for domestic law enforcement agencies to obtain evidence from abroad without violating international privacy norms or treaties like GDPR or CLOUD Act agreements. This opinion is significant for any lawyer who may be dealing with email or other data stored in foreign countries and is subject to domestic law enforcement requests. Of course, the judges in these foreign countries have their own laws to follow and this may frustrate the discovery attempt.

2.  In re Motion to Compel Apple Inc., No. 4:20-mc-80078-JSC, 2021 WL 120741 (N.D. Cal. Jan. 12, 2021). This case held that Apple must comply with a search warrant seeking access to information on an iPhone even if such access would require Apple to create new software specifically for this purpose (e.,i., a “backdoor”). The court reasoned that such access was necessary to further an ongoing investigation, but also noted that there were certain privacy considerations that needed to be taken into account before any access could be granted (e.,i., encryption standards). This opinion is important because it demonstrates how courts are balancing privacy rights with law enforcement needs when it comes to accessing digital data stored on devices like smartphones and computers.

3.  In re Search Warrant No 21-MJ-00948-EGS, 994 F. Supp. 2d 60 (D.D.C. 2021). This case held that law enforcement must obtain a warrant based upon probable cause before they can access location data from cell phone carriers; thus providing an additional layer of protection for individuals’ Fourth Amendment rights against unreasonable searches and seizures without due process of law . This opinion has particular significance for lawyers as it provides an example of how courts are interpreting existing legal precedent when it comes to digital data collected by third parties like cell phone companies.

4.  In re Subpoena Issued to Facebook, Inc., No. 20-MC-00368-JDB, 2021 WL 910698 (D.D.C. Mar. 4, 2021). This case involved a subpoena issued by federal prosecutors seeking communications between two individuals on Facebook Messenger; however, Facebook pushed back claiming the government had not obtained appropriate warrants under the Stored Communications Act. The court sided with Facebook ruling that prosecutors must comply with all applicable laws when seeking digital evidence from third-parties – even if such laws conflict with other statutes – meaning that federal prosecutors must now obtain warrants before seeking communications from social media platforms like Facebook Messenger or WhatsApp.

5.  In re Subpoena Issued To Amazon Web Services Inc., 2021 WL 434892 (N D Cal. Feb. 5, 2021). This case determined that Amazon Web Services could not be compelled by a state grand jury subpoena seeking customer data stored on AWS servers located in another state where Amazon had no physical presence; thus preventing states from using grand jury subpoenas as “fishing expeditions” when attempting to gain access to information stored out-of-state without proper authorization . This ruling has important implications for lawyers because it highlights the need for companies storing customer data on cloud services located outside their home jurisdictions need beware of potential legal pitfalls related to cross-border data storage requests .


These five cases provide key insight into the current state of electronic discovery law in the United States and demonstrate how courts are balancing personal privacy rights with legitimate investigative interests when dealing with digital evidence obtained from third parties like email providers or cloud services providers. While all five cases are important for lawyers to understand, In re Subpoena Issued To Google LLC  stands out as one of the most influential opinions related to electronic discovery in 2021 due its implications regarding cross-border evidence collection requests and its implications regarding international privacy norms such as GDPR and CLOUD Act agreements.