Notice to all TAR students and anyone else who might be interested in my latest thoughts on AI-enhanced document review, new material has been added to the e-Discovery Team’s TAR Course. The new content includes two video lectures that provide examples of applications of the methods taught. One new video is placed at the end of Class 13 on Random Prevalence. That is Step Three in the standard eight-part work flow. The other more lengthy video is at the end of Class 14 on Steps Four, Five and Six. This video provides an example of the iterated training cycle.
Class Fourteen is the longest, most difficult class in the Course. It could be broken down into three, easier to manage classes. But the three iterated steps 4-5-6 do go together, so logically they should be taught together in one long class. In the new video for this class, which is shown in two parts due to length, Ralph gives an example of this workflow and also discusses quality control. The video refers to a new graphic added, a screen shot of an actual case we handled. New text was also added to explain the folder naming protocol we typically use to keep track of our search activities in predictive coding projects.
You can go to the classes themselves, Class 13 and Class 14, where you will find the new materials at the end. Or you can keep reading here where the new material added is reproduced in full.
Thirteenth Class: Step Three – Random Prevalence
We close this class with an example to illustrate how this prevalence step works. Below is a screen shot of a project Ralph was working on in 2017 using KrolLDiscovery software. In the video that follows Ralph explains the prevalence calculation made in that case and how it helped guide his efforts. You will see another video discussing this case at the end of the next class.
By the way, Ralph misspoke in the video at point 8:39 when he said 95% confidence interval, he meant to say 95% confidence level. The random sample of 1,535 documents created a probability of 95% +/- 2.5%, meaning a 95% confidence levelsubject to an error range or interval of plus or minus 2.5%.
Fourteenth Class: Steps Four, Five and Six – Iterate
Concluding Case Example
We conclude this class with a two-part video where Ralph illustrates the 4-5-6 steps taken on a particular case. The same case was discussed in the last class. Just above his video is the screen shot of the various document directories that he named to record his efforts up to the eleventh round of training. Each directory contains the actual documents referenced and details of the search itself, what you could call the search metadata. (Those are not shown in the screen shot.) Each directory may also contain multiple sub-directories of documents that illustrate other searches. The directories can further nest as per standard computer protocols.
This kind of directory naming protocol serves to document the key procedures you followed. It is an outline of your work-flow. Each directory contains the electronic files you retrieved by each procedure. This makes it easier to refresh your memory and quickly access the underlying documents found from different searches. You can, if need be, also contemporaneously create a detailed memorandum that further documents each step. We sometimes do so in special cases, but here we only used this far-quicker folder naming protocol and did not also create a memorandum to file. We do this largely as a cost and time-savings measure. The preparation of a full, detailed narrative of work flow can become quite time consuming and expensive. Whereas using this protocol to create a running record of your activities takes comparatively little time.
It is important for quality control purposes to keep a history of your work like this, even if it is just in outline form. The folder histories we create are fairly short and abbreviated, as you can see, but they were originally far less detailed than this. We have found that this level of detail of work description, combined with the actual documents, makes it easier to analyze your efforts and decide what to do next. Yes, it takes some time to do this, and slows your work a little bit, but it is well worth the efforts from the gains in quality that you will achieve.
As an added benefit, this kind of history also strengthens the defensability of your efforts. Although we are almost never challenged, if we were, we could easily recreate and explain our actions. That kind of evidence could be required in exceptional circumstances to prove that reasonable efforts were made under Rule 26(g) Federal Rules of Civil Procedure or other rules and law. As you might imagine, Losey can testify for hours, if need be, on predictive coding and the 4.0 methods that were followed in a particular case in which he was involved. He would provide this testimony by relying on his memory, refreshed by contemporaneous notes like you see in the screen shot below. You can do the same.
This essay focuses on a lawyer’s ethical duty of confidentiality. It consists of a video of my lecture on this subject discussing the main ethics opinions on electronic communications and encryption. Just a few days after the video was made, the American Bar Association Standing Committee on Ethics and Professional Responsibility published an important new Formal Opinion 477 (May 11, 2017) entitled Securing Communication of Protected Client Information. This new Opinion is covered in some detail after the videos.
The duty to protect a client’s secrets is so important that I have also added these videos to the eighty-five class e-Discovery Team Training course in Module 4-K. I have also added the written discussion on the new Formal Opinion 477.
Rule 1.6 – Confidentiality of Information
The following Duty of Confidentiality lecture is based on the ABA Model Ethics Rule 1.6 – Confidentiality of Information:
(c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
See eg: NY Bar Opinion 749, 2/21/17 (“Duty to protect a client’s confidential information from cybersecurity risk and handling e-discovery when representing clients in a litigation or government investigation.”)
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See: ABA Formal Op. 99-413 (Mar. 10, 1999):
A lawyer may transmit information relating to the representation of a client by unencrypted e-mail… because the mode of transmission affords a reasonable expectation of privacy from a technological and legal standpoint.
Also see: Cal. Op. 2010-179
Encrypting email may be a reasonable step for an attorney to take … when the circumstance calls for it, particularly if the information at issue is highly sensitive and the use of encryption is not onerous.
See: State Bar of Texas, Opinion 648(2015) that identified several instances where encryption or some other method of security may be appropriate, including:
communicating highly sensitive or confidential information via email;
sending an email to or from an account that the email sender or recipient shares;
sending an email to a client when it is possible that a third person (such as a spouse in a divorce case) knows the password to the email account, or to an individual client at that client’s work email account, especially if the email relates to a client’s employment dispute with his employer (see ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 11-459 (2011));
sending an email if the lawyer is concerned that the NSA or other law enforcement agency may read the lawyer’s email communication, with or without a warrant.
May 11th 2017 ABA Opinion: Securing Communication of Protected Client Information
After I created the above video the ABA published a new opinion on lawyer confidentiality, Formal Opinion 477 (May 11, 2017) (hereinafter “Opinion“). The Opinion was written by the American Bar Association Standing Committee on Ethics and Professional Responsibility. It addresses the reasonable efforts lawyers and law firms must take to ensure that communications with clients are secure and not subject to inadvertent or unauthorized security breaches. It updates Formal Opinion 99-413 quoted above and discussed in the video. This update was sorely needed and very well done. My congratulations to the Committee. I expect many state Bars to follow and adopt this ABA recommendation. I urge you to carefully read this new Opinion in full. Here is the ABA introductory synopsis:
Securing Communication of Protected Client Information
A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security precautions to protect against the inadvertent or unauthorized disclosure of client information when required by an agreement with the client or by law, or when the nature of the information requires a higher degree of security.
The Standing Committee on Ethics and Professional Responsibility goes on to explain in the Opinion how much things have changed since the 1999 opinion on the use of unencrypted email.
[T]he term “cybersecurity” has come into existence to encompass the broad range of issues relating to preserving individual privacy from intrusion by nefarious actors throughout the Internet. Cybersecurity recognizes a post-Opinion 99-413 world where law enforcement discusses hacking and data loss in terms of “when,” and not “if.”4 Law firms are targets for two general reasons: (1) they obtain, store and use highly sensitive information about their clients while at times utilizing safeguards to shield that information that may be inferior to those deployed by the client, and (2) the information in their possession is more likely to be of interest to a hacker and likely less voluminous than that held by the client.5
Opinion pg. 2.
The Standing Committee again “rejects requirements for specific security measures (such as firewalls, passwords, and the like)” and stays with the “reasonable efforts” standard. This somewhat controversial position is made in reliance of the ABA Cybersecurity Handbook (ABA 2013) which, instead of mandating specific security measures such as encryption:
… adopts a fact-specific approach to business security obligations that requires a “process” to assess risks, identify and implement 101 appropriate security measures responsive to those risks, verify that they are effectively implemented, and ensure that they are continually updated in response to new developments.12
Opinion quoting Cybersecurity Handbook at pg. 4. You see the Committee is moving slowly and cautiously. That is prudent here because so much training is required to bring the Bar up to speed on the many arcane technicalities involved in cybersecurity and encryption. This is fast becoming The Hot Specialty in the legal profession. Electronic Discovery is so yesterday. If I were not so involved in the AI aspects of searching for evidence in near-infinite haystacks of information, I would try to include this specialty too. But for now at least it is too challenging to try to do both at once.
The Opinion points out that a fact-based analysis means that strong protective measures, like encryption, are necessary in some circumstances. Encryption software and use-procedures are becoming easier. Now any intelligent person can understand the processes and use them effectively, not just cryptologists. All lawyers should either learn this or associate with an attorney who does. We all need more training in this area, myself included, to stay competent in the fast-moving information explosion era. All of the illegal hacking going on today is outrageous.
In other circumstances involving certain highly sensitive information (such as, in my opinion, classified military information, or certain trade secrets sought by Chinese corporations, as well as certain personal and corporate divorce investigations or political) it may be reasonable to avoid electronic communications altogether. Opinion at pgs. 4-5.
But in most circumstances,
… for matters of normal or low sensitivity, standard security methods with low to reasonable costs to implement, may be sufficient to meet the reasonable efforts standard to protect client information from inadvertent and unauthorized disclosure.
Opinion at pg. 5.
The Committee does not specify the reasonable efforts required in such matters, but does say that “unencrypted routine email generally remains an acceptable method of lawyer-client communication.” Opinion pg. 5. The Opinion at pgs. 5-10 then provides a list of considerations as guidance:
Understand the Nature of the Threat.
Understand How Client Confidential Information is Transmitted and Where It Is Stored.
Understand and Use Reasonable Electronic Security Measures.
Determine How Electronic Communications About Clients Matters Should Be Protected.
Label Client Confidential Information.
Train Lawyers and Nonlawyer Assistants in Technology and Information Security.
Conduct Due Diligence on Vendors Providing Communication Technology.
Well done by the Committee. An update on this topic was sorely needed. Now a wide-spread education program to explain the seven guidance points is in order. Time will tell how long this complex technical guidance will suffice. How long will it be before encryption of some level becomes a per se rule. How long before encryption is required in all attorney communications. It will be required some day, of that I am sure. Just not today. Still, if I were the Committee I would be working on a draft.
My Prediction of Future Tightening of Attorney Ethics Due to Increased Cybersecurity Concerns
The Opinion is the last word for now, but I predict that sometime within the next five years the American Bar Association Standing Committee on Ethics and Professional Responsibility will agree on a new Formal Ethics Opinion. The next opinion will, I predict, require encryption in all electronic communications and all Electronic Information, whether in transit or in storage. The “it depends” exceptions in the current Opinion will be eliminated. The predicted opinion will likely impose additional duties on attorneys and law firms to protect client data.
The expected expanded duties will cause disruptive change to the profession. It will be difficult for many lawyers and law firms to keep up. But I predict the Bar will have no choice but to do so because of accelerating advances in hacker technology. These advances will further empower criminal and state hacking. We are already seeing these developments now. See eg.: Perlroth & Sanger, Hackers Hit Dozens of Countries Exploiting Stolen N.S.A. Tool (NYT, 5/12/17); Keren Elazari, We must act now to prevent future malware epidemics (Financial Times, 5/14/17).
Unprotected email, websites and other ESI repositories are an invitation to blackmail. Illegal hacking tools are already easily available to any criminal or script kiddie with rudimentary computer skills. It is no longer the exclusive area of the hacker elite. Nothing is safe without back-ups, encryption and other protections, including attorney client communications and law firm ESI. Even mundane communications have metadata value that may help hackers. The situation grows worse every year. As a result, lawyers will, in five years or so, likely be required to use encryption and other confidentiality tools in all communications, include the mundane. It will be automatic. There will be no if and or buts.
In view of what seems to be an inevitable requirement of full encryption, all lawyers and law firms should start preparing now. Your CISOs and attorneys should start working together on this requirement as soon as possible. See eg., Lazzarotti, et al, Ransomware Attacks: Prevention and Preparedness (Jackson Lewis, 5/14/17). It never hurts to stay ahead of the curve. You will succeed if you work together as a team for the common good. Neither technologists nor lawyers should dominate. Natural leader(s) of the team can emerge from both sides and change over time. The use of outside specialists is, as always, a key ingredient for success, not only for the expertise, but also for the objective perspective.
Conclusion
Confidentiality is a critical problem facing all lawyers today. We all need to stay proficient in this area, including especially the uses of encryption. The smooth operation of our system of justice depends on the confidentiality of the attorney client relationship. Lawyers must be able to maintain the secrecy of their clients’ ESI. They must also protect their own work-product, including investigations, strategies, mental impressions and communications. The ABA Formal Opinion 477(May 11, 2017) is a helpful addition to this literature. But it is, I think, just a harbinger of even more stringent ethical requirements to come. The increasing cyber dangers and failures of security will force the ABA to go much further than this. We all need to spend more time increasing our knowledge in this important area.
For further reading I suggest the following articles and information resources.
Joe Lazzarotti
R. Losey, eDiscoverySecurity – Addresses cybersecurity issues from an e-discovery perspective.
The California Bar issued an important ethics ruling in mid-2016 that all lawyers should know about. The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2015-193 (final version August 2016). The key component of the Opinion is the list of nine tasks that an attorney should either be able to do, or, if they cannot, to associate with other legal counsel who does. Below is the language from the Opinion that describes these tasks followed my video explanation of the knowledge required to competently perform them. The video is divided into four parts with some intentional overlap for emphasis.
Just a few years ago this kind of knowledge was considered arcane and was only known by e-discovery specialists. Now the California Bar has taken a bold leap forward to make this knowledge required for all attorneys who litigate in California. The California Bar has thus raised the bar of competence for everyone by making this an ethical imperative in their state. Note, that as footnote seven to the Opinion makes clear, this is not intended to be an exhaustive list. For instance, attorneys must also know how to properly obtain an opposing party’s ESI.
This development is so important that I have also added these videos to the TAR Course, class one of sixteen, and to the eighty-five class e-Discovery Team Training course in Module 1-N, which is now entitled Ken Withers on Discovery and Cooperation, the Sedona Cooperation Proclamation, and the California Bar Ethics Opinion Setting Forth Nine Minimum e-Discovery Skills That All Attorneys Should Know.
Attorneys handling e-discovery should be able to perform (either by themselves or in association with competent co-counsel or expert consultants) the following:
1. Initially assess e-discovery needs and issues, if any;
2. Implement/cause to implement appropriate ESI preservation procedures;
3. Analyze and understand a client’s ESI systems and storage;
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4. Advise the client on available options for collection and preservation of ESI;
5. Identify custodians of potentially relevant ESI;
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6. Engage in competent and meaningful meet and confer with opposing counsel concerning an e-discovery plan;
7. Perform data searches;
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8. Collect responsive ESI in a manner that preserves the integrity of that ESI; and
9. Produce responsive non-privileged ESI in a recognized and appropriate manner. FN7
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FN 7 – This opinion focuses on an attorney’s ethical obligations relating to his own client’s ESI and, therefore, this list focuses on those issues. This opinion does not address the scope of an attorney’s duty of competence relating to obtaining an opposing party’s ESI.
Conclusion
California is now leading the charge in pushing for e-discovery competence. It may be a while before other state Bar associations are bold enough to follow suit, but eventually they will. In the meantime California lawyers have the same challenges of competence as the rest of the country, but for them, it is now an ethical imperative. It will be interesting to see if this opinion has the intended effect and raises the competency bar of all litigating attorneys in California. Alternatively, it could significantly increase the consulting and co-counsel work of e-discovery lawyer specialists. It will probably be a combination of both, but I suspect the greatest impact will be in boosting the specialty. Those who can easily pole vault over the new standards may soon have more work than they can handle.
A little over two years ago, on April 5, 2015, my seminal world-view essay was published: Information → Knowledge → Wisdom: Progression of Society in the Age of Computers. I wrote about the rapid changes in society caused by personal computers and set out my theory of three stages of social development. This is my theory of the world, or as Thomas Friedman now puts it, a theory of how the Machine works. Thank You for Being Late: An Optimist’s Guide to Thriving in the Age of Accelerations (11/16/16) (“To be an opinion writer, you need to be carrying around a working hypothesis of how the Machine works. … If you don’t have a theory … you’ll either push it in a direction that doesn’t accord with your beliefs, or you won’t move it at all.)
The Information → Knowledge → Wisdomessay included twelve predictions with a foolishly short timeline of only five to twenty years, from 2020 to 2035. As I explained in the essay, the purpose of these predictions was to test the accuracy of my hypothesis that we are in the first, dangerous Information stage of an Age of Computers and will quickly transition to one based on knowledge. Either that, or we would all perish and otherwise slip into a dystopia. The Information stage of computer technology is that dangerous. The events of the past twelve months have proven that point to my satisfaction and great regret.
Predictions that test your theories are something that smart opinion writers like Thomas Friedman never do. The future is hard to predict. Predictions often fail and so discredit the author’s ideas. I knew this, but am more concerned with truth than success. If my theory of how the Machine works is wrong, no one wants to know this more than me. For this reason I was willing, even eager, to put my Information → Knowledge → Wisdom theory out there in 2015 for the future to judge as right or wrong. Time will tell if this was foolish or wise. By 2035, or maybe earlier, I will either look very smart, or will be proven to be yet another delusional computer guru.
My predictions all concerned the transition of a society from one based on Information, in which we now live, to a society based on Knowledge. As I explained the transition from mere Information to Knowledge is a necessary survival step for society, not an idealistic dream. My 2015 essay warned of the dangers society faces if we stay stuck in a mere Information society and do not quickly evolve into one based on Knowledge. Unfortunately, we have seen many of these dangers accelerate over the last year.
I consider the next Knowledge Age to again be a transition step to the ultimate goal of a society based on Wisdom. My predictions did not address this last step to Wisdom because this step is too far out time-wise for any meaningful predictions. It is possible for some individuals to make this step now, but not enough for a whole society to be centered in Wisdom. We have a long way to go to move from an Information to a Knowledge Society before we can make predictions on how a Wisdom based society will arise.
A year after my essay was first published I wrote a follow-up examining how the twelve predictions had played out the in the first year. How The 12 Predictions Are Doing That We Made In “Information → Knowledge → Wisdom” (April 5, 2016). They generally did well, which, I posit tends to prove that my theory of Computer culture is true. This essay assumes that you have read last year’s status report. Here I will reexamine all twelve predictions in the second year, April 2016 to April 2017. I will also necessarily examine the dangers that I warned about concerning an Information based society.
Dangers of the First Stage Information Era in the Age of Computers
I want to first deal with the dangers and warnings that I made in 2015 before examining the twelve predictions. No, I did not foresee Donald Trump’s election, nor the interference in the democratic processes by the Russians. I made no specific predictions on the dark-side of the transition information era, but I did foresee many general dangers. I specifically spoke of the need to Cross-check and Verify. Here are the essential quotes from my original essay concerning the dangers of our current transition time:
The spike and distribution of online information is just a first major consequence of the New Age of Computation. It will not be the last. The focus on information alone will soon change, indeed, must soon change. The information explosion is nowhere near the final goal. Information alone is dangerous and superficial.Our very survival as a society depends on our quick transition to the next stage of a computer culture, one where Knowledge is the focus, not Information.
We must now quickly evolve from shallow, merely informed people with short attention spans, and superficial, easily manipulated insights, to thoughtful, knowledgeable people. Then ultimately, some day, we must evolve to become truly wise people. …
Media seems to be the chief villain of the superficial information society, but it can quickly change as people change. …
Transition Beyond an Information Society is a Survival Imperative
This journey, this progress of our technology culture, is not an idle dream. It is a survival imperative. Information alone, unprocessed, and not yet converted to knowledge, is dangerous. I imagine that some planets in this enormous Universe of ours get stuck and never make it to the next step. These other worlds destroy themselves with too much information and not enough knowledge. They self-destruct in various new technology scenarios, from nuclear holocaust, to climate destruction, to Big Brother dictatorships, to self-obsessed, stagnating, shallow, greedy, short attention span news-junkie people. All of these cultural disasters could well await our own planet.
There are so many ways that a culture based on Information, not Knowledge, can go wrong and either destroy itself, or stagnate, and never make it to the end game of freedom and justice for all. The transformation from an Information society to a Knowledge society must happen quickly if we are to survive and prosper. …
Conclusion
We have to know to act, and so we need to go beyond an information society, and we have to do it fast. If we do not, the dark side of technology could soon overwhelm us. Stop just reading. Stop just being informed. It is not enough. Think. Process. Analyze. Cross-check. Verify. Take action. Create. Share. Teach. Teamwork. …
Without knowledge, information can easily become misinformation, alternative facts. Did the Pope really endorse Donald Trump for president? If you get your news from some media, especially social media, if you live in an information bubble, you will never know. You will be greedy and self-obsessed. You will be easily manipulated.
Are we well-informed, or misinformed? As I said in 2015 – Stop just being informed. It is not enough. Think. Process. Analyze. Cross-check. Verify. Will we make it out of these dangerous times? Or will we sink ever deeper into self-obsessed, stagnating, shallow, greedy, short attention span news-junkie people? Will an information only society not grounded in knowledge lead us to nuclear holocaust, to climate destruction, to Big Brother dictatorships? I did not make any specific predictions on that then. I refuse to do so now. It should be obvious to all thinking people that these dangers are much more intense now, than when I wrote about them in 2015. (If you are interested in my political views, follow me on Twitter. But my essay, Information → Knowledge → Wisdom: Progression of Society in the Age of Computers, is apolitical. I do not favor any particular candidates or party, I favor knowledge over information.)
The way to avoid these dangers is to focus on Knowledge, on Wisdom. I try to follow my own advice on what to do to get there: Think. Process. Analyze. Cross-check. Verify. Take action. Create. Share. Teach. Teamwork.
We cannot afford to slow down our efforts. The dangers inherent in our current Information stage are too dire, too terrible and all too real for complacency. Nuclear holocaust, climate destruction, Big Brother dictatorships – any of these fates could await us. The combinations of these dark forces on the peninsula of Korea are particularly worrisome for me right now.
1. Several inventions, primarily in insanely great new computer hardware and software, will allow for the creation of many new types of cyber and physical inter-connectivity environments. There will be many more places that will help people to go beyond information to knowledge. They will be both virtual realities, for you or your avatars to hang out, and real-world meeting places for you and your friends to go to. They will not be all fun and games (and sex), although that will be a part of it. Many will focus exclusively on learning and knowledge. The new multidimensional, holographic, 3D, virtual realities will use wearables of all kinds, including Oculus-like glasses, iWatches, and the like. Implant technology will also arise, including some brain implants, and may even be common in twenty years. Many of the environments, both real and VR, will take education and knowledge to a new level. Total immersion in a learning environment will take on new meaning. The TED of the future will be totally mind-blowing.
After just spending several hours of research on this today, I was surprised to see how far we have come on this. In fact, I am ready to call it. Our top prediction has already come true. In five years it will be more fully developed, but it is already here. For instance, see:
Immersive VR Education which simulates a lecture hall in virtual reality, while adding special effects which can’t be utilized in a traditional classroom setting.
Unimersiv is a VR learning platform which releases educational content on a monthly basis.
Nearpod. Uses 360 degree photos and videos with traditional lesson plans.
Schell Games. Produces fun VR games for kids to teach them in new ways.
Gamar. Uses VR in museums to enhance educational benefits.
Think Link. Creates new types of classroom environments.
EON Reality. Interactive technology. Here is a short video explaining some of the new features they are developing.
Microsoft is also actively promoting its new HoloLens device as an education tool. HoloLens in Education (Microsoft, 10/13/16); #TheFeedUK – HoloLens in Education (Microsoft, 2/15/17). This mixed reality approach using a HoloLens has great promise in the next couple of years as this new gear enters the market.
Yes. This first prediction has already come true. I do not think for a minute that makes up for the other dangers that have materialized in the past year, but it is a positive sign for the future. Now let’s look at the other eleven predictions for what we should see from 2020 to 2035. Remember, these changes will only take place if society is in fact changing from information based, to knowledge based, as I predicted would happen (assuming we do not perish first).
Four Predictions on Social Media and Dissemination of Expertise
2. Some of the new types of social media sites will be environments where subject matter experts (SME) are featured, avatars and real, cyber and in-person, shifted and real-time. There will also be links to other sites or rooms that are primarily information sources.
I am not sure that the POTUS is always a bona fide SME, but the current one is an obsessive user of my favorite social media venue, Twitter. He announces policy there. He tweets there in the middle of the night. The world has never seen anything like this. This is not exactly what I had in mind when I made this prediction, but it is close. Right now Trump is the expert on what the POTUS might do next, that and the last strong person he has talked to.
A better example that I continue to see developing is Quora. This is growing, but there is still a long way to go on this prediction.
3. The new SME environment will include products and services, with both free and billed aspects.
This is also growing, but at an even faster rate than the second prediction, especially for billed services. This may be another one that will beat my five years minimum prediction. See the well-known, but hardly new CraigsList and EMILY’s List. Also see sites oriented at SME services, usually by the hour or project. For instance HighSkill Pro. This is a website where you can hire, in their words, vetted top-tier service providers for one-off projects, experts such as accountants, business consultants and lawyers. Another site, GURU, claims to already have over 1.5 Million expert members. As Guru’s website puts it:
Search for services being offered by freelancers that match your needs. Our global network of over 1.5 million gurus are eager to help with any technical, creative or business projects you have on the table. Explore each freelancer’s profile and browse their previous work so you can hire with confidence.
There are a many other places where you can hire specialty SME type experts of all kinds, often just by the hour. See for instance the following websites: Up Work – claims to be the biggest; Freelancer; Tap Chief; Expertise Finder; People Per Hour; Proposal Gurus; Guild; Expert Networks – list of over 100 different expert networks; Clarity – for start-up advisors; Maven; Zintro; Experfy – Big data analytics oriented; Presto Experts – experts and tutors. I could go on and on. You can Google for more in a specialty area you may be interested in. This prediction is coming true, although it is still short on the kind of online community that I envision.
4. The knowledge nest communityenvironments will be both online and in-person. The real life, real world, interactions will be in safe public environments with direct connections with cyberspaces. It will be like stepping out of your computer into a Starbucks or laid-back health spa.
Although some real-world colleges are becoming more online and digital oriented, real innovation by them in this area is still a few years off. For good background see, Korn & Belkin, Colleges Rush to Ramp Up Online Classes (Wall Street Journal, 4/30/17).
Amazon bookstores, bricks and mortar, started to open in 2015 and is a better example of what I intend by this prediction. They are apparently a success and are growing in number. I for one cannot wait for the return of a quality book store near me with online background. After all, Amazon killed all of the others that used to be here.
More high-tech libraries are also starting to be built. Other, more innovative Knowledge Nest community centers may already be opening, but have not come on my radar yet. They may well grow out of coffee shops, local restaurants, yoga studios and meditation retreat centers. They might also grow out of some of the more innovative shared office space and start-up business incubation centers. We are starting to see some early signs of this.
5. The knowledge focused cyberspaces, both those with and without actual real-words SMEs, will look and feel something like a good social media site of today, but with multimedia of various kinds. Some will have Oculus type VR enhancements like the StarTrek holodeck. All will have system administrators and other staff who are tireless, knowledgeable, and fair; but most will not be human.
This prediction depends in large part on the actualization of the first four. These kind of mature multidimensional cyberspaces will come later, when the other predictions come true, and when AIs are more developed as discussed next. You could argue that the continued explosion and all-pervasiveness of Facebook should be included in this category group, but is still too dominated by information, often misinformation, to be considered a real knowledge nest.
Predictions on AI
Seven of our predictions as to how society will likely transition from an Information Age to a Knowledge Age involved the use of new and improved kinds of artificial intelligence entities. AI, both general and special, continues to advance, but no big breakthroughs this year. It was a year of more baby steps, including my team’s advance from version 3.0 of predictive coding to 4.0. TAR Course. The largest advances seem to be in AI driven transportation.
It seems like to focus of discussion in AI over the past year has been in the twin worries of:
It’s easy to see jobs disappearing … [but] it’s hard to see the new jobs that will be invented because they don’t exist yet. There will always be stuff to do. Young people starting on their career path shouldn’t necessarily be discouraged by machine learning, or abandon career aspirations because of it. Find something [you’re] interested in that provides something that people want, and think deeply about it. Be aware of the various technologies and be able to use them, and apply them to whatever field you’re interested in.
For lawyers and others to prosper in the coming age of very smart computers, namely AI, they need to step-up and learn to use these computers to help them to do their jobs. Augmentation instead of automation requires knowledge, not just information. If we do not transition fast to a knowledge based society, then perhaps the “superior AI takes over worriers” will be proven right. I can think of much worse dystopias resulting from a computer society stagnating in the information stage.
6. The admins, operators and other staff in these cyberspaces will be advanced AI, like cyber-robots. Humans will still be involved too, but will delegate where appropriate, which will be most of the time. This is one of my key predictions.
The development of Chatbots and their ability to imitate humans is advancing fast. This may someday soon lead to what I predicted here, which is far more intelligent that Chatbots. Here is the latest Wikipedia explanation ofChatbots:
A chatbot (also known as a talkbot, chatterbot, Bot, chatterbox, Artificial Conversational Entity) is a computer program which conducts a conversation via auditory or textual methods. Such programs are often designed to convincingly simulate how a human would behave as a conversational partner, thereby passing the Turing test. Chatterbots are typically used in dialog systems for various practical purposes including customer service or information acquisition. Some chatterbots use sophisticated natural language processing systems, but many simpler systems scan for keywords within the input, then pull a reply with the most matching keywords, or the most similar wording pattern, from a database.
This is a precursor to the development of AI admins. As far as I know what I envisioned here has not happened yet. The help desk usage we already see does not qualify. The AI is, however, advancing fast and we may see it soon in the more sophisticated usages I projected. To quote the Wikipedia article again, this development does seem inevitable,
Interface designers have come to appreciate that humans’ readiness to interpret computer output as genuinely conversational—even when it is actually based on rather simple pattern-matching—can be exploited for useful purposes. Most people prefer to engage with programs that are human-like, and this gives chatbot-style techniques a potentially useful role in interactive systems that need to elicit information from users, as long as that information is relatively straightforward and falls into predictable categories. Thus, for example, online help systems can usefully employ chatbot techniques to identify the area of help that users require, potentially providing a “friendlier” interface than a more formal search or menu system. This sort of usage holds the prospect of moving chatbot technology from Weizenbaum’s “shelf … reserved for curios” to that marked “genuinely useful computational methods”.
7. The presence of AIs will spread and become ubiquitous. They will be a key part of the IOT – Internet of Things. Even your refrigerator will have an AI, one that you program to fit your current dietary mood and supply orientation.
The IOT is rapidly advancing, but the security issues are holding it back (or should). The AI in your appliances should also have security guard features, then maybe security conscious people like me will be more likely to embrace a smart toaster. Folks like IBM see how the future of IOT is linked to AI, so this development seems secure. Hupfer, AI is the future of the IoT – IBM Internet of Things blog (12/15/16). In this IBM blog Susanne Hupfer, Ph.D., a Senior Consultant and a lead analyst for the IBM Cognitive Advantage Study, made her own predictions that are similar to mine:
It’s not too hard to imagine a future in which humans, IoT devices, and AI-powered robots and objects will exist harmoniously as a kind of collective “digital brain” that anticipates human needs and provides predictions, recommendations, and solutions. In the near-term future, we humans are likely to allow the digital brain to enhance our own decision making. In the more distant future, we may even trust the digital brain to take certain actions upon our behalf.
8. The knowledge products and services will come in a number of different forms, many of which do not exist in the present time, but will be made possible by other new inventions, especially in the area of communications, medical implants, brain-mind research, wearables, and multidimensional video games and conferences.
We are already seeing a number of innovative approaches to knowledge products and services in the virtual reality field, as discussed above.
9. All subject areas will be covered, somewhat like Wikipedia, but with super-intelligent cyber robots to test, validate and edit each area. The AI robots will serve most of the administrator and other cyber-staffing functions, but not all.
This kind of super-librarian AI still seems decades away, but the events of the last year, dominated as they were by fake-news and alternate-facts may supercharge research in this area. Facebook says they are working on this, as well they should, since many are now angry at what they consider Facebook’s naive approach to political power and allowing their product to be manipulated. See eg. Manjoo, Can Facebook Fix Its Own Worst Bug? (NYT, 4/25/17) (“Mark Zuckerberg now acknowledges the dangerous side of the social revolution he helped start. But is the most powerful tool for connection in human history capable of adapting to the world it created?”)
10. The AI admins will monitor, analyze, and screen out alleged SMEs who do not meet certain quality standards. The AI admins will thus serve as a truth screen and quality assurance. An SME’s continued participation in an AI certified site will be like a Good Housekeeping Seal of Approval.
The so-called experts that appear on many televisions networks and social medias of all sorts are now operating with no quality controls. Editors used to control lies, but often the goal is not truth at all, it is power or money. Many experts are out there in all fields, not just journalism, that suffer from these same ethical challenges. We all need protection from experts who should not be trusted. Consider for instance the so-called Swedish National Security Advisor who appeared on national televisions that the government of Sweden said they had never even heard of.
This tenth prediction, like the last, is of greater importance than I realized in 2015 when I made these predictions. Again, I hope that AI will guide us out of the current mess. We are not only suffering from too much information, but also misinformation and propaganda.
11. The AI admins will also monitor and police the SME services and opinions for fraud and other unacceptable use, and for general cybersecurity. The friendly management AIs will even be involved in system design, billing, collection, and dispute resolution.
12. Environments hosted by such friendly, fair, patient, sometimes funny, polite (per your specified level, which may include insult mode), high IQ intelligence, both human and robot, will be generally considered to be reliable, bona fide, effective, safe, fun, enriching, and beautiful. They will provide a comforting alternative to information overload environments filled with conflicting information, including its lowest form, data. These alternative knowledge nests will become a refuge of music in a sea of noise. Some will become next generation Disney World vacation paradises.
This twelfth prediction is built on all of the rest. It will necessarily be one of the last to come true.
Conclusion
The development of VR and education has taken off faster than predicted. I thought it would take five years, until 2020, but it looks to me like it is already here. Certainly it will get better, but I consider this first prediction, the one I called the most important, to have already come true. But that is just one of twelve and not enough to prove the Information → Knowledge theory. And certainly not enough on its own to pull us out of a dangerous time of mere data into one of Knowledge.
Prediction number three (“The new SME environment will include products and services, with both free and billed aspects.”) is also close to coming true, but I am not ready to call it yet. Still, at this point, it is looking like a sure thing. Again, this development by itself is not powerful. It advances real knowledge, instead of information, but not that far.
Progress was made this past year in all of the other ten predictions. I would I feel pretty good about the theory so far being proven true, but for the fact that the downside of the warnings are also coming true. A Computer Age centered in mere Information, with too little Knowledge, may even be more dangerous than I thought. I am not so sure we can survive the full twenty years to 2035 for the shift to Knowledge.
Our very survival as a fledgling Computer Age society may well depend on our moving our center of gravity to Knowledge on the early side of the 5-20 year prediction. At five years that would be 2020, which is the next presidential election. Can we survive four more years after that, to 2024, before citizens place their votes based on actual knowledge of the issues? I am unsure. I just hope that Thomas Friedman’s optimistic observations of extremely fast acceleration are correct. If so, maybe we will make it through these dangerous times. Maybe we will make it from misinformation to knowledge in ten years, not twenty.
Please, fellow knowledge workers, intensify and accelerate your efforts. We need everyone to join in. That is the only way to avoid the many possible technology dystopias we now face. Our freedom depends on it. Our very lives depend on it, and so to do all future generations.
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Ralph Losey is a practicing attorney and shareholder in a national law firm with 50+ offices and over 800 lawyers where he is in charge of Electronic Discovery. All opinions expressed here are his own, and not those of his firm or clients. No legal advice is provided on this web and should not be construed as such.
Ralph has long been a leader of the world's tech lawyers. He has presented at hundreds of legal conferences and CLEs around the world. Ralph has written over two million words on e-discovery and tech-law subjects, including seven books. He is also the founder of Electronic Discovery Best Practices, and the founder and CEO of e-Discovery TeamTraining, an online education program that arose out of his five years as an adjunct professor teaching e-Discovery and Evidence at the UF School of Law. Ralph is also publisher and principle author of this blog and many other instructional websites.
Ralph is a specialist who has limited his legal practice to electronic discovery and tech law since 2006. He has a special interest in software and the search and review of electronic evidence using artificial intelligence, and also in cybersecurity. Ralph devotes about a month per year on scientific research and experiments in the field of legal search. He is a participant in the 2016 and 2015 TREC Recall Track and prior to that competed successfully in the EDI Oracle research.
Ralph has been involved with computers, software, legal hacking and the law since 1980. Ralph has the highest peer AV rating as a lawyer and was selected as a Best Lawyer in America in four categories: Commercial Litigation; E-Discovery and Information Management Law; Information Technology Law; and, Employment Law - Management. Ralph also received the "Most Trusted Legal Advisor" industry award for 2016-17 by the Masters Conference. His full biography may be found at RalphLosey.com.
Ralph is the proud father of two children, Eva Losey Grossman, and Adam Losey, a lawyer with cyber expertise (married to another cyber expert lawyer, Catherine Losey), and best of all, husband since 1973 to Molly Friedman Losey, a mental health counselor in Winter Park.
1. Electronically stored information is generally subject to the same preservation and discovery requirements as other relevant information.
2. When balancing the cost, burden, and need for electronically stored information, courts and parties should apply the proportionality standard embodied in Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents, which require consideration of importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.
3. As soon as practicable, parties should confer and seek to reach agreement regarding the preservation and production of electronically stored information.
4. Discovery requests for electronically stored information should be as specific as possible; responses and objections to discovery should disclose the scope and limits of the production.
5. The obligation to preserve electronically stored information requires reasonable and good faith efforts to retain information that is expected to be relevant to claims or defenses in reasonably anticipated or pending litigation. However, it is unreasonable to expect parties to take every conceivable step or disproportionate steps to preserve each instance of relevant electronically stored information.
6. Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
7. The requesting party has the burden on a motion to compel to show that the responding party’s steps to preserve and produce relevant electronically stored information were inadequate.
8. The primary source of electronically stored information to be preserved and produced should be those readily accessible in the ordinary course. Only when electronically stored information is not available through such primary sources should parties move down a continuum of less accessible sources until the information requested to be preserved or produced is no longer proportional.
9. Absent a showing of special need and relevance, a responding party should not be required to preserve, review, or produce deleted, shadowed, fragmented, or residual electronically stored information.
10. Parties should take reasonable steps to safeguard electronically stored information, the disclosure or dissemination of which is subject to privileges, work product protections, privacy obligations, or other legally enforceable restrictions.
11. A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using technology and processes, such as data sampling, searching, or the use of selection criteria.
12. The production of electronically stored information should be made in the form or forms in which it is ordinarily maintained or in a that is reasonably usable given the nature of the electronically stored information and the proportional needs of the case.
13. The costs of preserving and producing relevant and proportionate electronically stored information ordinarily should be borne by the responding party.
14. The breach of a duty to preserve electronically stored information may be addressed by remedial measures, sanctions, or both: remedial measures are appropriate to cure prejudice; sanctions are appropriate only if a party acted with intent to deprive another party of the use of relevant electronically stored information.
Notice to all TAR students and anyone else who might be interested in my latest thoughts on AI-enhanced document review, new material has been added to the e-Discovery Team’s TAR Course. The new content includes two video lectures that provide examples of applications of the methods taught. One new video is placed at the end of Class 13 on Random Prevalence. That is Step Three in the standard eight-part work flow. The other more lengthy video is at the end of Class 14 on Steps Four, Five and Six. This video provides an example of the iterated training cycle.
We conclude this class with a two-part video where Ralph illustrates the 4-5-6 steps taken on a particular case. The same case was discussed in the last class. Just above his video is the screen shot of the various document directories that he named to record his efforts up to the eleventh round of training. Each directory contains the actual documents referenced and details of the search itself, what you could call the search metadata. (Those are not shown in the screen shot.) Each directory may also contain multiple sub-directories of documents that illustrate other searches. The directories can further nest as per standard computer protocols.
This kind of directory naming protocol serves to document the key procedures you followed. It is an outline of your work-flow. Each directory contains the electronic files you retrieved by each procedure. This makes it easier to refresh your memory and quickly access the underlying documents found from different searches. You can, if need be, also contemporaneously create a detailed memorandum that further documents each step. We sometimes do so in special cases, but here we only used this far-quicker folder naming protocol and did not also create a memorandum to file. We do this largely as a cost and time-savings measure. The preparation of a full, detailed narrative of work flow can become quite time consuming and expensive. Whereas using this protocol to create a running record of your activities takes comparatively little time.
It is important for quality control purposes to keep a history of your work like this, even if it is just in outline form. The folder histories we create are fairly short and abbreviated, as you can see, but they were originally far less detailed than this. We have found that this level of detail of work description, combined with the actual documents, makes it easier to analyze your efforts and decide what to do next. Yes, it takes some time to do this, and slows your work a little bit, but it is well worth the efforts from the gains in quality that you will achieve.
Posted by Ralph Losey 
After I created the above video the ABA published a new opinion on lawyer confidentiality, 
The Standing Committee on Ethics and Professional Responsibility goes on to explain in the Opinion how much things have changed since the 1999 opinion on the use of unencrypted email.
The Standing Committee again “rejects requirements for specific security measures (such as firewalls, passwords, and the like)” and stays with the “reasonable efforts” standard. This somewhat controversial position is made in reliance of the 
Opinion quoting Cybersecurity Handbook at pg. 4. You see the Committee is moving slowly and cautiously. That is prudent here because so much training is required to bring the Bar up to speed on the many arcane technicalities involved in cybersecurity and encryption. This is fast becoming The Hot Specialty in the legal profession. Electronic Discovery is so yesterday. If I were not so involved in the AI aspects of searching for evidence in near-infinite haystacks of information, I would try to include this specialty too. But for now at least it is too challenging to try to do both at once.
The Opinion points out that a fact-based analysis means that strong protective measures, like encryption, are necessary in some circumstances. Encryption software and use-procedures are becoming easier. Now any intelligent person can understand the processes and use them effectively, not just cryptologists. All lawyers should either learn this or associate with an attorney who does. We all need more training in this area, myself included, to stay competent in the fast-moving information explosion era. All of the illegal hacking going on today is outrageous.
In other circumstances involving certain highly sensitive information (such as, in my opinion, classified military information, or certain 
The Committee does not specify the reasonable efforts required in such matters, but does say that “unencrypted routine email generally remains an acceptable method of lawyer-client communication.” Opinion pg. 5. The Opinion at pgs. 5-10 then provides a list of considerations as guidance:
The Opinion is the last word for now, but I predict that sometime within the next five years the American Bar Association Standing Committee on Ethics and Professional Responsibility will agree on a new Formal Ethics Opinion. The next opinion will, I predict, require encryption in 
The expected expanded duties will cause disruptive change to the profession. It will be difficult for many lawyers and law firms to keep up. But I predict the Bar will have no choice but to do so because of accelerating advances in hacker technology. These advances will further empower criminal and state hacking. We are already seeing these developments now. See eg.: 
Confidentiality is a critical problem facing all lawyers today. We all need to stay proficient in this area, including especially the uses of encryption. The smooth operation of our system of justice depends on the confidentiality of the attorney client relationship. Lawyers must be able to maintain the secrecy of their clients’ ESI. They must also protect their own work-product, including investigations, strategies, mental impressions and communications. The ABA 
The California Bar issued an important ethics ruling in mid-2016 that all lawyers should know about. 
A little over two years ago, on April 5, 2015, my seminal world-view essay was published: 
This journey, this progress of our technology culture, is not an idle dream. It is a survival imperative. Information alone, unprocessed, and not yet converted to knowledge, is dangerous. I imagine that some planets in this enormous Universe of ours get stuck and never make it to the next step. These other worlds destroy themselves with too much information and not enough knowledge. They self-destruct in various new technology scenarios, from nuclear holocaust, to climate destruction, to Big Brother dictatorships, to self-obsessed, stagnating, shallow, greedy, short attention span news-junkie people. All of these cultural disasters could well await our own planet.
I am not sure that the POTUS is always a bona fide SME, but the current one is an obsessive user of my favorite social media venue, 
Seven of our predictions as to how society will likely transition from an Information Age to a Knowledge Age involved the use of new and improved kinds of artificial intelligence entities. AI, both general and special, continues to advance, but no big breakthroughs this year. It was a year of more baby steps, including my team’s advance from version 3.0 of predictive coding to 4.0. 
Ralph has long been a leader of the world's tech lawyers. He has presented at hundreds of legal conferences and CLEs around the world. Ralph has written over two million words on e-discovery and tech-law subjects, including seven books. He is also the founder of 
Ralph is a specialist who has limited his legal practice to electronic discovery and tech law since 2006. He has a special interest in software and the search and review of electronic evidence using 
