This is the second and concluding section to the two-part blog, Lawyers’ Job Security in a Near Future World of AI, the Law’s “Reasonable Man Myth” and “Bagley Two.” Click here to read Part One.
However, requiring this additional production, or a further deposition in case of need, is in keeping with a governing objective of the Federal Rules of Civil Procedure: “By requiring disclosure of all relevant information, the discovery rules allow ultimate resolution of disputed issues to be based on full and accurate understanding of true facts.” 6 Moore’s Federal Practice § 26.02 (Matthew Bender 3d ed.). 6
6 While Yale may not welcome the measurement of its obligations in the case at bar by these principles, it is worth recalling that the treatise’s principal initial author, James Wm. Moore, was a towering figure on the faculty of Yale Law School. In his preface to the first edition (1938), Professor Moore referred to his effort “at all times to accord to the Rules the interpretation which is most likely to attain the general objective of the new practice: the settlement of litigation on the merits.” That is the interpretation this Ruling attempts to adopt.
Poor Yale. Moore’s Federal Practice is one of the most cited treatises in the law. James W. Moore was the author of the 34-volume Moore’s Federal Practice (2d ed., 1948) and the three-volume Moore’s Manual: Federal Practice & Procedure (1962). He was also the Sterling Professor Emeritus of Law at Yale University, where he taught for 37 years. Who else but Yale can have anything in Moore’s thirty-four volume treatise held against them personally? Seems kind of funny, but I am sure Yale’s attorneys were not laughing.
Getting back to the case and Judge Haight’s decision. Aside from showing the malleability and limits of reason, Bagley Two provides some important new precedent for e-discovery, namely his rulings on privilege and the discoverability of a party’s preservation efforts. Judge Haight starts by repeating what is now established law, that a party’s preservation efforts are not satisfied by mere issuance of a notice, that a whole process is involved and the process must be reasonable. He then goes on to provide a pretty good list of the facts and circumstances that should be considered to determine reasonability.
[A] party’s issuance of a litigation hold notice does not put an end to the party’s obligation to preserve evidence; it is, rather, the first in a series of related steps necessary to ensure that preservation. As Magistrate Judge Francis aptly observed in Mastr Adjustable Rate Mortgages Trust 2006 v. UBS Real Estate Securities Inc., 295 F.R.D. 77, 85 (S.D.N.Y. 2013): “A litigation hold is not, alone, sufficient; instead compliance must be monitored.”
In spoliation cases involving litigation hold notices, one can discern from Second Circuit and district court opinions a number of decisive questions:
1. When did a party’s duty to preserve evidence arise?
2. Did the party issue a litigation hold notice in order to preserve evidence?
3. When did the party issue a litigation hold notice, in relation to the date its duty to preserve the evidence arose?
4. What did the litigation hold notice say?
5. What did recipients of the litigation hold notice do or say, in response to or as result of, the notice?
6. After receiving recipients’ responses to the litigation hold notice, what further action, if any, did the party giving the notice take to preserve the evidence?
Questions 2 through 6 are entirely fact-specific to a given case. Question 1 is a mixed question of law and fact, whose legal element the Second Circuit defined in Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001): “The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.”
In the case at bar, I am unable to accept Yale’s argument that the litigation hold notices it issued about Bagley and the recipients’ responses to the notices are immune from discovery because (in the absence of proof that spoliation had in fact occurred) such documents “are subject to the attorney-client and to work product privileges,” Defendants’ Brief [Doc. 192], at 3. That contention is something of a stretch. … . Assuming that all of Clune’s litigation hold notices were sent to employees of Yale, Clune was in effect communicating with his client. However, the predominant purpose of that communication was to give recipients forceful instructions about what they must do, rather than advice about what they might do. 3
I like the list of six key facts to consider to weigh the reasonability of preservation efforts, especially the last one. But my primary point here is the malleability of reason in classifying the notice as unprotected. A letter from in-house counsel telling employees that the law requires them to preserve is not advice entitled to privilege protection? It’s predominant purpose was instead unprotected instructions? The language of the litigation hold notices was earlier quoted in the opinion. It’s language included the following:
[A]ll members of the Yale faculty and staff who have information in their possession or control relating or referring in any way to Professor Bagley, her employment and teaching at SOM, or the circumstances relating to the non-renewal of her faculty appointment (collectively “this Matter”) have a legal obligation to preserve that information. The law imposes this obligation to prevent the loss of potential evidence during litigation. You must preserve and retain, and not alter, delete, remove, discard or destroy, directly or indirectly, any information concerning this Matter. Failure to preserve information could seriously undermine Yale’s legal position and lead to legal sanctions.
The lawyer’s letter tells employees that they “have a legal obligation to preserve,” and the legal consequences if they do not. Yet this letter is not advice because the predominant purpose is just an unprotected instruction? That is the holding.
Judge Haight gets rid of work product protection too.
As for the work product doctrine, it “is not actually a privilege, but rather a qualified immunity from discovery,” codified in Fed. R. Civ. P. Rule 26(b)(3), whose purpose “is to protect an attorney’s mental processes so that the attorney can analyze and prepare for the client’s case without interference from an opponent.” 6 Moore’s Federal Practice, § 26.70 (Matthew Bender 3d ed.). 4 That purpose is not implicated by the present exercise.
4 Fed. R. Civ. P. 26 (b)(3) of Civil Procedure protects from disclosure those materials which reveal “the mental impressions, conclusions, opinions, or legal theories of a party’s attorney.” See also In re Steinhardt Partners, L.P., 9 F.3d 230, 234 (2d Cir. 1993) (“At its core, the work product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.”) (quoting United States v. Nobles, 422 U.S. 225, 238 (1975)) (emphasis added).
I do not agree with Judge Haight on this aspect of his ruling. I think both work product and attorney client apply to these particular notices and his “reasoning”on this issue is wrong. I do, however, agree with his final ruling requiring production. I think the protections had been waived by the circumstances and actions of defense counsel, which, by the way, they were correct in doing. I think the waiver on their part was necessary. Judge Haight also mentioned waiver, but as dicta alternative grounds in footnote three:
3 The Court also notes that to the extent that Yale’s litigation hold notices included the text of the exemplar provided to Plaintiff as “document preservation notices,” that text has already been revealed publicly in this case, so that secrecy or privilege relating to that language was destroyed or waived. See Doc. 191-1, Ex. F.
Judge Haight then looks at the question of when Yale’s duty to preserve commenced. Recall Yale kept adding custodians in eight stages. The first were pre-litigation notices. They were made, I note, after Yale’s lawyer mental processes told him that litigation was reasonably likely. The last were made after suit was filed, again based on the lawyer’s mental processes causing him to believe that these additional witnesses might have relevant evidence. The mental processes of Plaintiff’s attorneys led them to believe that all of the notices, including the pre-litigation notices, were sent too late and thus spoliation was likely. Here is Judge Haight’s analysis of the trigger issue:
When, during the course of this melancholy chain of events, should Yale have known that evidence pertinent to Bagley’s reappointment might be relevant to future litigation? That is a crucial question in spoliation analysis. A state of reasonable anticipation clearly antedates the actual filing of a complaint; in Fujitsu, 247 F.3d at 436, the Second Circuit was careful to couple actual present and possible future litigation as catalysts of equal strength for the preservation of evidence.
Bagley has not yet formally moved for spoliation sanctions, and so the question is not yet before me for decision, but some preliminary, non-binding observations may be made. The record previously made in the case shows that Bagley’s personal distress and institutional disapproval and distrust grew throughout the winter and spring of 2012 (the last year of her five-year appointment), so that when on May 24, 2012, Dean Snyder told Bagley that she would not be reappointed, it would not be irrational to suppose that Bagley might soon transform herself from disheartened academic to vengeful litigant. In fact, Bagley filed an internal discrimination complaint against Yale during the following month of June 2012 (which had the effect of bringing Provost Salovey out of the wings and onto the stage).
Note the Judge’s use of the phrase not be irrational to suppose. What is the impact of hindsight bias on this supposedly objective, rational analysis? Bagley’s later actions made it obvious that she would sue. She did sue. The law suit has been very contentious. But was it really all that obvious back in 2012 that Yale would end up in the federal courthouse? I personally doubt it, but, admit it is a close judgment call. We lawyers say that a lot. All that phrase really means is that reason is not objective. It is in the eye of the beholder.
Judge Haight then wraps up his analysis in Bagley Two.
What happened in this case is that Yale identified 65 individuals who might have evidence relevant to Bagley’s denial of reappointment, and issued them litigation hold notices in eight separate batches, a process that took a considerable amount of time. The first nine notices were sent nine months after Snyder told Bagley she would not be reappointed. The last was sent eight months after Bagley filed this action. To characterize the pace of this notification process as culpable or even negligent would be premature on the present record, but it is fair to say that it was leisurely, to an extent making it impossible to dismiss as frivolous Bagley’s suggestion that she might move for a spoliation sanction. The six questions outlined supra arise in this case, and the factors pertinent to resolving them include an unreasonable delay in issuing the notices and a subsequent failure to implement and monitor the recipients’ responses. Judge Sweet said in Stimson that the Second Circuit has left open “the question of whether a sufficiently indefensible failure to issue a litigation hold could justify an adverse inference on its own,” and an additional factor would be “the failure to properly implement the litigation hold even after it was issued.” 2016 WL 54684, at *6. These are legitimate questions in the case at bar. Bagley is entitled to discovery with respect to them. 5 (footnote citations omitted)
I certainly agree with Judge Haight on all of those points and law. Those factual circumstances do justify the modest amount of discovery requested by the plaintiff in this motion.
Now we get to the actual Order on the pending motion to compel:
Therefore I conclude that in the circumstances of this case, Bagley’s “Motion to Compel” [Doc. 190] is GRANTED. Bagley is entitled to examine the litigation hold notices issued by Yale, and the responsive survey forms that notice recipients returned to Yale. These documents bear directly upon the questions courts identify as dispositive in spoliation cases. Bagley is entitled to discovery in these areas, in order to discern the merit or lack of merit of a formal claim for spoliation claim. To the extent that Yale objects to production of these documents on the grounds of privilege or the work product doctrine, the objections are OVERRULED.
For the same reasons, Bagley is also entitled to an affidavit from a Yale officer or employee (not a notice recipient or recipients) which describes what non-ESI documents Yale received from notice recipients and what was done with them. On a spoliation claim, Bagley will ultimately bear the burden of showing that pertinent evidence was destroyed or rendered unavailable. This discovery may cast light on that disputed issue. Yale may prefer not to have to produce that information; Yale’s counsel miss no opportunity to remind the Court how much discovery effort the case has previously required.
Judge Haight then ended his opinion with the previously quoted zinger regarding Yale’s famous law Professor Moore. This zinger and comments about Yale’s leisurely efforts and Yale counsel’s missing no opportunities to remind the court tell a story of their own. It shows the emotional undertone. So too does his earlier noted comment about “spoliation” being a cardinal litigation vice, well known to practicing attorneys and judges, but “perhaps unfamiliar” to academics. I suspect this goes beyond humor.
Artificial Intelligence and the Future of Employment
I am sure legal reason will improve in the future and become less subjective, less subject to hidden irrationalities and prejudices. By using artificial intelligence our legal doctrines and decision making can be improved, but only if the human judges remain in charge. The same comment goes for all attorneys. In fact, it applies to all current employment.
The doom and gloom futurists disagree. They think AI will replace humans at their jobs, not empower them. They envision a future of cold automation, not man-machine augmentation. They predict wide-spread unemployment with a loss of half of our current employment. An University of Oxford study predicted that almost half of all U.S. jobs could be lost to automation in the next twenty years. Even the influential World Economic Forum predicts predicts that Five Million jobs could be lost by 2020. Five Million Jobs by 2020: the Real Challenge of the Fourth Industrial Revolution. Also see: The Future of Jobs: Employment, Skills and Workforce Strategy for the Fourth Industrial Revolution (World Economic Forum, Jan. 2016).
A contrary view “augmentation” oriented group predicts the opposite, that at least as many new jobs will be created as lost. This is a subject of hot debate. See Eg. Artificial intelligence will save jobs, not destroy them (World Economic Forum, 1/19/17). Readers know I am in the half-full camp.
James Bessen: Law Prophet of the Future of Employment
[B]ecause higher wage occupations use computers more, computer use tends to increase well-paid jobs and to decrease low-paid jobs. Generally, computer use is associated with a substantial reallocation of jobs, requiring workers to learn new skills to shift occupations.
Also see the article in The Atlantic magazine by Bessen, The Automation Paradox: When computers start doing the work of people, the need for people often increases, (The Atlantic, 1/19, 2016) where he said:
…workers will have greater employment opportunities if their occupation undergoes some degree of computer automation. As long as they can learn to use the new tools, automation will be their friend.
This is certainly consistent with what I have seen in the legal profession since I started practice in 1980.
James Bessen has also written a book on this, Learning by Doing: The Real Connection Between Innovation, Wages, and Wealth. (Yale U. Press 2015). In this book, Bessen, in his words:
… looks at both economic history and the current economy to understand how new technology affects ordinary workers and how society can best meet the challenges it poses.
He notes that major new technologies always require new human work skills and knowledge, and that today, as before, they are slow and difficult to develop. He also makes the observation, which is again consistent with my own experience as a tech-lawyer, that relevant technical knowledge “develops slowly because it is learned through experience, not in the classroom.” In his analysis that is because the new knowledge is not yet standardized. I agree. This is one reason my work has been focused on the standardization of the use of active machine learning in the search for electronic evidence; see for example Predictive Coding 4.0 and my experiments at the TREC conference on predictive coding methods sponsored by the National Institute of Standards and Technology. Also see: Electronic Discovery Best Practices. In spite of my efforts on standards and best practices for e-discovery, we are still in the early, rapidly changing, non-standardized stage of new technology. Bessen argues that employer policies and government policies should encourage such on-the-job learning and perfection of new methods.
For workers to move up the ranks, they must acquire the necessary skillset.”).
Standardization v. On-the-Job Training
Moving on up requires new employment skills. It requires workers who can step-in, step-up, step-aside, step-narrowly, or step-forward. Only Humans Need Apply; Dean Gonsowski,
Report of my experimental review of 699,082 Enron documents using a semi-automated monomodal methodology (a five-part written and video series comparing two different kinds of predictive coding search methods); Predictive Coding Narrative: Searching for Relevance in the Ashes of Enron; EDI-Oracle Study: Humans Are Still Essential in E-Discovery (LTN Nov., 2013); e-Discovery Team at TREC 2015 Total Recall Track, Final Report; TREC 2016 Total Recall Track NOTEBOOK.Borg Challenge:
There is more going on in Bagley Two than objective reason, even assuming such a thing exists. Experienced attorneys can easily read between the lines. Reasoned analysis is just the tip of the iceberg, or top of the pyramid, as I envisioned in the new model for Holistic Law outlined in my prior article, Scientific Proof.
There is far more to Senior District Judge Charles S. Haight, Jr., than his ability to be logical and apply reason to the facts. He is not just a “thinking machine.” He has wisdom from decades on the bench. He is perceptive, has feelings and emotions, good intuitions and, we can see, a sense of humor. The same holds true for most judges and lawyers, perhaps even law professors. We are all human and have many other capacities beyond what robots can be trained to do.
Reason is just one of the things that we humans do, and, as the work of Professor Ariely has shown, it is typically full of holes and clouded by hidden bias. We need the help of computers to get reason done right, to augment our logic and reasoning skills. Do not try to compete with, nor exclude robots from tasks involving reason. You will ultimately lose that battle. Instead, work with the robots. Invite them in, but remain in control of the processes; use the AI’s abilities to enhance and enlarge your own.
I am sure legal reason will improve in the future and become less subjective. This will happen when more lawyers Step-In as discussed in Davenport and Kirby, Only Humans Need Apply and Dean Gonsowski,
Only the tech-savvy will be able to move up the skill and wage ladder by stepping-in to make the technology work right. I attained the necessary skill set to do this with legal technology by teaching myself, by “hacking around” with computers. Yes, it was difficult, but I enjoyed this kind of learning. My story of on the job self-learning is very common. Thus the name of Bessen’s book, Learning by Doing. Others might do better in a more structured learning environment, such as a school, but for the fact there currently is none for this sort of thing, at least in the Law. It falls between the cracks of law school and computer science. For now the self-motivated, self-learners will continue to lead the way.
Not only do we need to improve our thinking with machines, we need to contribute our other talents and efforts. We need to engage and expand upon the qualities of our job that are most satisfying to us, that meet our human nature. This uniquely human work requires what is sometimes called “soft skills.” This primarily includes the ability for good interpersonal communication, but also such things as the ability to work collaboratively, to adapt to a new set of demands, and to solve problems on the fly. Legal counseling is a prime example according to the general counsel of Microsoft, Brad Smith. Microsoft’s Top Lawyer Toasts Legal Secretaries (Bloomberg Law, 1/18/17). The top lawyer, once CEO of Microsoft, also opined:
Individuals need to learn new skills to keep pace, and this isn’t always easy. Over the next decade this could become more daunting still, as technology continues to change rapidly. There is a broadening need for new technical skills and stronger soft skills. The ability – and opportunity – to continue learning has itself become more important.
Brad Smith, Constructing a Future that Enables all Americans to Succeed, (Dept. of Commerce guest blog, 11/30/16).
- Communication – oral, speaking capability, written, presenting, listening.
- Courtesy – manners, etiquette, business etiquette, gracious, says please and thank you, respectful.
- Flexibility – adaptability, willing to change, lifelong learner, accepts new things, adjusts, teachable.
- Integrity – honest, ethical, high morals, has personal values, does what’s right.
- Interpersonal skills – nice, personable, sense of humor, friendly, nurturing, empathetic, has self-control, patient, sociability, warmth, social skills.
- Positive attitude – optimistic, enthusiastic, encouraging, happy, confident.
- Professionalism – businesslike, well-dressed, appearance, poised.
- Responsibility – accountable, reliable, gets the job done, resourceful, self-disciplined, wants to do well, conscientious, common sense.
- Teamwork – cooperative, gets along with others, agreeable, supportive, helpful, collaborative.
- Work ethic – hard working, willing to work, loyal, initiative, self-motivated, on time, good attendance.
As Brad Smith correctly observed, the skills and tasks needed to keep pace with technology include these kinds of soft skills as well as new technological know-how, things like the best methods to implement new predictive coding software. The tasks, both soft and technical, are generally not overly repetitive and typically require some creativity, imagination, flexibility and inventiveness and, in my view, the initiative to exceed original parameters.
A concerned lawyer with real empathy who counsels fellow humans is not likely to be replaced anytime soon by a robot, no matter how cute. There is no substitute for caring, human relationships, for comforting warmth, wit and wisdom. The calm, knowledgeable, confident presence of a lawyer who has been through a problem many times before, and assures you that they can help, is priceless. It brings peace of mind, relaxation and trust far beyond the abilities of any machine.
Stepping-in is one solution for those of us who like working with new technology, but for the rest of humanity, soft-skills are now even more important. Even us tech-types need to learn and improve upon our soft skills. The team approach to e-discovery, which is the basic premise of this e-Discovery Team blog, does not work well without them.
Brad Smith’s comment on the need for continued learning is key for everyone who wants to keep working in the future. It is the same thing that Bessen, Davenport and Kirby say. Continued learning is one reason I keep writing. It helps me to learn and may help others to learn too, as part of their “autodidactic reading” and “educational bricolage.” (How else would I learn those words?) According to Bessen’s, Davenport and Kirby’s research most of the key skills needed to keep pace can only be learned on-the-job and are usually self-taught. That is one reason online education is so important. It makes it easier than ever for otherwise isolated people to have access to specialized knowledge and trainers.