I’ve escaped the e-Discovery Niche After 15 Years of Super-Specialization
Ralph Losey, January 25, 2022
After fifteen years of writing weekly blogs on e-discovery, I took three years off to focus on implementation of all those words. Now I’m back, back to where I once belonged. Writing again, but writing not just about my Big Law niche, the fun little AI corner that I had painted myself into, but back to writing about ALL of my interests in Law and Technology. That has been my home since I started in legal practice in 1980 and at the same time started coding, mostly games, but also music software, midi creations and law office technology. Proud to recall that I was one of the first computer lawyers in the country. (Also one of the first to get in trouble with the Bar for my Internet Website, FloridaLawFirm.com, which they thought was a television broadcast!)
Ralph in the early 90s
Anyway, when not haggling with the Bar and fellow attorneys who would tease me, the first nerd, and call me a “secretary” (ooh how terrible) for having a keyboard on my desk. I kid you not! I used PCs when they first came out in my law firm as the new associate. I have had them on my desk to try to work smarter ever since. Not PCs necessarily, but all kinds.
So I’m back to where I once belonged, in the great big world of technology law, making deals and giving advice. Oh yeah, I may still consult on e-discovery too, especially the AI parts that so fascinated me ever since my Da Silva Moore breakthrough days. (Thank you Judge Andrew Peck.) For my full story, some of which I had to hide in my Big Law role as a super-specialist, see: https://www.losey.law/our-people/25-uncategorized/108-ralph-losey Not many people know I was a Qui Tam lawyer too; and for both sides.
Wait, there is still more. I’ve left the best for last. I went back home, left Big Law for good, and am now practicing law with my son, Adam Losey, daughter in law, Cat Losey, and thirteen other, crazy tech lawyer types at Losey.law. Yes, that is the real domain name and the name of the firm itself is Losey. So of course I had to go there. Check it out. Practicing law with my son is a dream come true for both of us. I’m loving it. It was lonely being the only tech wiz in a giant firm. Adam knows tech better than me, is much faster in every respect (except maybe doc review with AI) and he and Cat are obviously a lot smarter.
To my long-time readers, thanks for your encouragement. I heard you and got back to my roots of general tech-law, and got back to blogging and home. To quote the Beatles the funny “Get Back” song in their great LET IT BE album:
Rosetta (who are you talking about?) about Sweet Loretta Fart. . . .
Stay tuned, because a new blog is coming at you soon. Feel free to drop me an email at Ralph at Losey dot Law. Humans only please. Robots not welcome (unless you’re from the future and don’t have weapons).
Abraham Lincoln was born on February 12, 1809. He was probably our greatest President. Putting aside the tears honest Abe must now be shedding over his political party, it is good to remember Lincoln as an exemplar of a U.S. lawyer. All lawyers would benefit from emulating aspects of his Nineteenth Century legal practice and Twenty First Century thoughts on technology. He was honest, diligent, a deep thinker and ethical. Very ethical. He did not need to be lectured on Cooperation and Rule 1. He also did not need to be told to embrace technology, not hide from it. In fact, he was a prominent Tech-Lawyer of his day, well known for his speaking abilities on the subject. Near the end of his legal career Abe was busy pushing technology and his vision of the future. Sound familiar dear readers? It should. Most of you are like that.
Lincoln was as obsessed with the latest inventions and advances in technology as any techno-geek e-discovery lawyer alive today. The latest things in Lincoln’s day were mechanical devices of all kinds, typically steam-powered, and the early electromagnetic devices, then primarily the telegraph. Indeed, the first electronic transmission from a flying machine, a balloon, was a telegraph sent from inventor Thaddeus Lowe to President Lincoln on June 16, 1861. Unlike Lincoln’s generals, he quickly realized the military potential of flying machines and created an Aeronautics Corps for the Army, appointing Professor Lowe as its chief. See Bruce, Robert V., Abraham Lincoln and the Tools of War. Below is a copy of a handwritten note by Lincoln introducing Lowe to General Scott.
At the height of his legal career, Lincoln’s biggest clients were the Googles of his day, namely the railroad companies with their incredible new locomotives. These newly rich, super-technology corporations dreamed of uniting the new world with a cross-country grid of high speed transportation. Little noticed today is one of Lincoln’s proudest achievements as President, the enactment of legislation that funded these dreams, the Pacific Railway Act of 1862. The intercontinental railroad did unite the new world, much like the Internet and airlines today are uniting the whole world. A lawyer as obsessed with telegraphs and connectivity as Lincoln was would surely have been an early adopter of the Internet and an enthusiast of electronic discovery. See: Abraham Lincoln: A Technology Leader of His Time (U.S. News & World Report, 2/11/09).
Abraham Lincoln loved technology and loved to think and talk about the big picture of technology, of how it is used to advance the dreams of Man. In fact, Lincoln gave several public lectures on technology, having nothing to do with law or politics. The first such lecture known today was delivered on April 6, 1858, before the Young Men’s Association in Bloomington, Illinois, and was entitled “Lecture on Discoveries and Inventions.” In this lecture, he traced the progress of mankind through its inventions, starting with Adam and Eve and the invention of the fig leaf for clothing. I imagine that if he were giving this speech today (and I’m willing to try to replicate it should I be so invited) he would end with AI and blockchain.
In Lincoln’s next and last lecture series first delivered on February 11, 1859, known as “Second Lecture on Discoveries and Inventions,” Lincoln used fewer biblical references, but concentrated instead on communication. For history buffs, see the complete copy of Lincoln’sSecond Lecture, which, in my opinion, is much better than the first. Here are a few excerpts from this little known lecture:
The great difference between Young America and Old Fogy, is the result of Discoveries, Inventions, and Improvements. These, in turn, are the result of observation, reflection and experiment.
Writing – the art of communicating thoughts to the mind, through the eye – is the great invention of the world. Great in the astonishing range of analysis and combination which necessarily underlies the most crude and general conception of it, great, very great in enabling us to converse with the dead, the absent, and the unborn, at all distances of time and of space; and great, not only in its direct benefits, but greatest help, to all other inventions.
I have already intimated my opinion that in the world’s history, certain inventions and discoveries occurred, of peculiar value, on account of their great efficiency in facilitating all other inventions and discoveries. Of these were the arts of writing and of printing – the discovery of America, and the introduction of Patent-laws.
Can there be any doubt that the lawyer who wrote these words would instantly “get” the significance of the total transformation of writing, “the great invention of the world,” from tangible paper form, to intangible, digital form? Can there be any doubt that a lawyer like this would understand the importance of the Internet, the invention that unites the world in a web of inter-connective writing, where each person may be a printer and instantly disseminate their ideas “at all distances of time and of space?”
Abraham Lincoln did not just have a passing interest in new technologies. He was obsessed with it, like most good e-discovery lawyers are today. In the worst days of the Civil War, the one thing that could still bring Lincoln joy was his talks with the one true scientist then residing in Washington, D.C., the first director of the Smithsonian Institution, Dr. Joseph Henry, a specialist in light and electricity. Despite the fact that Henry’s political views were anti-emancipation and virtually pro-secession, Lincoln would sneak over to the Smithsonian every chance he could get to talk to Dr. Henry. Lincoln told the journalist, Charles Carleton Coffin:
My visits to the Smithsonian, to Dr. Henry, and his able lieutenant, Professor Baird, are the chief recreations of my life…These men are missionaries to excite scientific research and promote scientific knowledge. The country has no more faithful servants, though it may have to wait another century to appreciate the value of their labors.
Bruce, Lincoln and the Tools of War, p. 219.
Lincoln was no mere poser about technology and inventions. He walked his talk and railed against the Old Fogies who opposed technology. Lincoln was known to be willing to meet with every crackpot inventor who came to Washington during the war and claimed to have a new invention that could save the Union. Lincoln would talk to most of them and quickly separate the wheat from the chaff. As mentioned, he recognized the potential importance of aircraft to the military and forced the army to fund Professor Lowe’s wild-eyed dreams of aerial reconnaissance. He also recognized another inventor and insisted, over much opposition, that the army adopt his new invention: Dr. Richard Gatling. His improved version of the machine gun began to be used by the army in 1864, and before that, the Gattling guns that Lincoln funded are credited with defending the New York Times from an invasion by “anti-draft, anti-negro mobs” that roamed New York City in mid-July 1863. Bruce, Lincoln and the Tools of War, p. 142.
As final proof that Lincoln was one of the preeminent technology lawyers of his day, and if he were alive today, surely would be again, I offer the little known fact that Abraham Lincoln is the only President in United States history to have been issued a patent. He patented an invention for “Buoying Vessels Over Shoals.” It is U.S. Patent Number 6,469, issued on May 22, 1849. I could only find the patent on the USPTO web, where it is not celebrated and is hard to read. So as my small contribution to Lincoln memorabilia in the bicentennial year of 2009, I offer the complete copy below of Abraham Lincoln’s three page patent. You should be able to click on the images with your browser to enlarge and download.
The invention consisted of a set of bellows attached to the hull of a ship just below the water line. After reaching a shallow place, the bellows were to be filled with air that buoyed the vessel higher, making it float higher and off the river shoals. The patent application was accompanied with a wooden model depicting the invention. Lincoln whittled the model with his own hands. It is on display at the Smithsonian and is shown below.
Conclusion
On Abe Lincoln’ birthday it is worth recalling the long, prestigious pedigree of Law and Technology in America. Lincoln is a symbol of freedom, emancipation. He is also a symbol of Law and Technology. If Abe were alive today, I have no doubt he would be, among other things, a leader of Law and Technology.
Stand tall friends. We walk in long shadows and, like Lincoln, we shall overcome the hardships we face. As Abe himself was fond of saying: down with the Old Fogies; it is young America’s destiny to embrace change and lead the world into the future. Let us lead with the honesty and integrity of Abraham Lincoln. Nothing less is acceptable.
It’s Mueller Time! I predict we will be hearing this call around the world for decades, including boardrooms. Organizations will decide to investigate themselves on sensitive issues before the government does, or before someone sues them and triggers formal discovery. Not always, but sometimes, they will do so by appointing their own independent counsel to check on concerns. The Boards of tomorrow will not look the other way. If Robert Muller himself later showed up at their door, they would be ready. They would thank their G.C. that they had already cleaned house.
Most companies who decide it is Mueller Time, will probably not investigate themselves in the traditional “full calorie” Robert Muller way, as good as that is. Instead, they will order a less expensive, AI based investigation, a Mueller Lite. The “full calorie” traditional legal investigation is very expensive, slow and leaky. It involves many people and linear document review. The AI Assisted alternative, the Mueller Lite, will be more attractive because of its lower cost. It will still be an independent investigation, but will rely primarily on internal data and artificial intelligence, not expensive attorneys.
I call this E-Vestigations, for electronic investigations. It is a new type of legal service made possible by a specialized type of AI called “Predictive Coding” and newly perfected Hybrid Multimodal methods of machine training.
Mueller Lite E-Vestigations Save Money
Robert Mueller investigations typically cost millions and involves large teams of expensive professionals. AI Assisted investigations are cheap by comparison. That is because they emphasize company data and AI search of the data, mostly the communications, and need so few people to carry out. This new kind of investigation allows a company to quietly look into and take care of its own problems. The cost savings from litigation avoidance, and bad publicity, can be compelling. Plus it is the right thing to do..
E-Vestigations will typically be a quarter the cost of a traditional Mueller style, paper investigations. It may even be far less than that. Project fees depend on the data itself (volume and “messiness”) and the “information need” of the client (simple or complex). The competitive pricing of the new service is one reason I predict it will explode in popularity. This kind of dramatic savings is possible because most of the time consuming relevance sorting and document ranking work is delegated to the AI.
The computer “reads” or reviews at nearly the speed of light and is 100% consistent. But it has no knowledge on its own. An idiot savant. The AI cannot do anything without its human handlers and trainers. It is basically a learning machine designed to sort large collections of texts into binary sets, typically relevant or irrelevant.
The human investigators read much slower and sometimes make mistakes (plus they like to get compensated), but they are absolutely indispensable. Someday the team of humans may get even smaller, but we are already down to around seven or fewer people per investigation. Compare that to the hundreds involved in a traditional Muller style document review.
Proactive “Peace of Mind” Investigations
This new legal service allows concerned management to proactively investigate upon the first indications of possible wrong-doing. It allows you to have greater assurance that you really know what is going on in your organization. Management or the Board then retains an independent team of legal experts to conduct the quick E-Vestigation. The team provides subject matter expertise on the suspected problem and uses active machine learning to quickly search and analyze the data. They search for preliminary indications of what happened, if anything. This kind of search is ideal for sensitive legal inquiries. It gives management the information needed without breaking the bank or publicizing the results.
This New Legal Service Is Built Around AI
E-Vestigations are a pre-litigation legal service that relies heavily on artificial intelligence, but not entirely. Investigations like this are very complex. They are nowhere near a fully automated process, and as mentioned the AI is really just a learning machine that knows nothing except how to learn document relevance. The service still needs legal experts, but a much smaller team
AI assisted investigations such as E-Vestigations have five compelling positive traits:
Cost
Speed
Stealthiness
Confidentiality
Accuracy.
This article introduces the new service, discusses these five positive traits and provides background for my prediction that many organizations will order AI assisted investigations in the coming years. In fact, due to the disappearing trial, I predict that E-Vestigations will someday take the lead from Litigation in many law firms. This prediction of the future, like most, requires a preliminary journey into the past, to see the longer causal line of events. That comes next, but feel to skip the next three sections until you come to the heading, What is an E-Vestigation?
King Litigation Is Dead
The glory days of litigation are over. All trial lawyers who, like me, have lived through the last forty years of legal practice, have seen it change dramatically. Litigation has moved from a trial and discovery practice, where we saw each other daily in court, to a discovery, motion and mediation practice where we communicate by email and occasional calls.
Although some “trial dogs” will not admit it, we all know that the role of trials has greatly diminished in modern practice. Everything settles. Ninety-nine percent (99%) of federal court civil cases settle without trial. Although my current firm is a large specialty practice, and so is an exception, in most law firms trials are very rare. A so-called “Trial Practice” of a major firm could go years without having an actual trial. I have seen it happen in many law firms. Good lawyers for sure, but they do not really “do trials,” they do trial preparation.
For example, when I started practicing law in 1980 “dispute resolution” was king in most law firms. It was called the “Litigation Department” and usually attracted the top legal talent. It brought in strong revenue and big clients. Every case in the top firms was either a “Bet the Farm” type, or a little case for kiddie lawyer training, we had no form-practice. Friedmann & Brown, “Bet the Farm” Versus “Law Factory”: Which One Works?(Geeks and Law, 2011).
The opposite, “Commodity Litigation,” was rare; typically just something for some divorce lawyers, PI lawyers, criminal lawyers and bankruptcy lawyers. These were not the desired specialties in the eighties, to put it mildly. Factory like practices like that did not pay that well (honest ones anyway) and were boring to most graduates of decent law schools. This has not changed much until recently, when AI has made certain Commodity practices far more interesting and desirable. SeeJoshua Kubicki, The Emerging Competitive Frontier in Biglaw is Practice Venturing (Medium, 1/24/19).
Aside from the less desirable Commodity practice law firms, most litigators in the eighties would routinely take a case to trial. Fish or Cut Bait was a popular saying. Back then Mediation was virtually unknown. Although a majority of cases did eventually settle, a large minority did not. That meant physically going to court, wearing suits and ties every day, and verbal sparing. Lots of arguments and talk about evidence. Sometimes it meant some bullying and physical pushing too, if truth be told. It was a rough and tumble legal world in the eighties, made up in many parts of the U.S. almost entirely of white men. Many were smokers, including the all-white bench.
Ah, the memories. Some of the Litigation attorneys were real jerks, to put it mildly. But only a few were suspected crooked and could not be trusted. Most were honest and could be. We policed our own and word got around about a bad apple pretty fast. Their careers in town were then soon over, one way or the other. Many would just move away or, if they had roots, become businessmen. There were trials a plenty in both the criminal and civil sides.The trials could be dramatic spectacles. The big cases were intense.
Emergence of Mediation
But the times were a changing. In the nineties and first decade of the 21st Century, trials quickly disappeared. Instead, Mediation started to take over. I know, I was in the first group of lawyers ever to be certified as a Mediator of High Technology disputes in 1989. All types of cases began to settle earlier and with less preparation. I have seen cases settle at Mediation where none of the attorneys knew the facts. They just knew what their clients told them. Even more often, only one side was prepared a knew the facts. The other was just “shooting from the hip.”
At trial the unprepared were quickly demolished by the facts, the evidence. At Mediation you can get away with it. The evidence is often just one side’s contention. Why bother to learn the record when you can just BS your way through a mediation? The truth is what I say it is, nothing more. There is no cross-exam. Mediation is a “liars heaven,” although a good mediator can plow through that.
What happened to all the Trial Lawyers you might ask? Many became Mediators, including several of my good friends. A few started specializing in Mediation advocacy, where psychodrama and math are king (typically division). Mediation has become the everyday “Commodity” practice and trials are now the “Bet the Farm” rarity.
With less than one-percent of federal cases going to trial, it is a complete misnomer to keep calling ourselves Trial Lawyers. I know I have stopped calling myself that. Like it or not, that is reality. Our current system is designed to settle. It has become a relativistic opinion fest. It is not designed to determine final, binding objective truth. It is not designed to make findings of fact. It is instead designed to mediate ever more ingenious ways to split the baby.We no longer focus on the evidence, on the objective truth of what happened. We have lost our way.
Justice without Truth is Destabilizing
Justice without Truth is a mockery of Justice, a Post-Modern mockery at that, one where everything is relative. This is called Subjectivism, where one person’s truth is as good as another’s. All is opinion.
This relativistic kind of thinking was, and still is in most Universities, the dominant belief among academics. Truth is supposed to be relative and subjective, not objective, unless it happens to be science. Hard science is supposed to have a monopoly on objectivity. Unfortunately, this relativistic way of thinking has had some unintended consequences. It has led to the kind of political instability that we see in the U.S. today. That is the basic insight of a new book by Pulitzer Prize winner, Michiko Kakutani. The Death of Truth: Notes on Falsehood in the Age of Trump (Penguin, 2018). Also see Hanlin, Postmodernism didn’t cause Trump. It explains him. (Washington Post, 9/2/18).
Truth is truth. It is not just what the company with the biggest wallet says it is. It is not an opinion. Objective truth, the facts based on hard evidence, is real. It is not just an opinion. This video ad below by CNN was cited by Kakutani in her Death of Truth. It makes the case for objectivity in a simple, common sense manner. The political overtones are obvious.
There is a place for the insights of Post-Modern Subjectivism, especially as it concerns religion. But for now the objective-subjective pendulum has swung too far into the subjective. The pause between directions is over and it is starting to swing back. Facts and truth are becoming important again. This point in legal history will, I predict, be marked by the Mueller investigation. Evidence is once again starting to sing in our justice system. It is singing the body electric. The era of E-Vestigations has begun!
What are E-Vestigations?
E-Vestigations are confidential, internal investigations that focus on search of client data and metadata. They uses Artificial Intelligence to search and retrieve information relative to the client’s requested investigation, their information need. We use an AI machine training method that we call Hybrid Multimodal Predictive Coding 4.0. The basic search method is explained in the open-sourced TAR Course, but the Course does not detail how the method can be used in this kind of investigation.
E-Vestigation is done outside of Litigation and court involvement, usually to try to anticipate and avoid Litigation. Are the rumors true, or are the allegations just a bogus attempt to extort a settlement? E-Vestigations are by nature private, confidential investigations, not responses to formal discovery. AI Assisted investigations rely primarily on what the data says, not the rumors and suspicions, or even what some people say. The analysis of vast volumes of ESI is possible, even with millions of files, because e-Vestigations use Artificial Intelligence, both passive and active machine learning. Otherwise, the search of large volumes of ESI takes too long and is too prone to inaccuracies. That is the main reason this approach is far less expensive than traditional “full calorie” Muller type investigations.
The goal of E-Vestigation is to find quick answers based on the record. Interviews may not be required in many investigations and when they are, they are quick and, to the interviewee, mysterious. The answers to the information needs of a client are sometimes easily found. Sometimes you may just find the record is silent as to the issue at hand, but that silence itself often speaks volumes.
The findings and report made at the end of the E-Vestigation may clear up suspicion, or it may trigger a deeper, more detailed investigation. Sometimes the communications and other information found may require an immediate, more drastic response. One way or another, knowing provides the client with legitimate peace of mind.
The electronic evidence is most cases will be so overwhelming (we know what you said, to whom and when) that testimony will be superfluous, a formality. (We have your communications, we know what you did, we just need you to clear up a few details and help us understand how it ties into guys further up the power chain. That help will earn you a lenient plea deal.) This is what is happening right now, January 2019, with the investigation of Robert Mueller.
Defendants in criminal cases will still plea out, but based on the facts, on truth, not threats. Defendants in civil cases will do the same. So will the plaintiff in civil cases who makes unsubstantiated allegations. Facts and truth protect the innocent. Most of that information will be uncovered in computer systems. In the right hands, E-Vestigations can reveal all. It is a proactive alternative to Litigation with expensive settlements. The AI data review features of E-Vestigations make it far less expensive than a Muller investigations. Is it Mueller Time for your organization?
Robert Mueller never need ask a question of a witness to which he does not already know the answer based on the what the record said. The only real question is whether the witness will further compound their problems by lying. They often do. I have seen that several times in depositions of parties in civil cases. It is sheer joy and satisfaction for the questioner to watch the ethically challenged party sink into the questioner’s hidden traps. The “exaggerating witness” will often smile, just slightly, thinking they have you fooled, just like their own attorney. You smile back knowing their lies are now of record and they have just pounded another nail into their coffin.
E-Vestigations may lead to confrontation, even arrest, if the investigation confirms suspicions. In civil matters it may lead to employee discharge or accusations against a competitor. It may lead to an immediate out-of-court settlement. In criminal matters it may lead to indictment and an informed plea and sentencing. It may also lead to Litigation in civil matters with formal, more comprehensive discovery, but at least the E-Vestigating party will have a big head start. They will know the facts. They will know what specific information to ask for from the opposing side.
Eventually, civil suits will not be filed that often, except to memorialize a party’s agreement, such as a consent to a judgment. It will, instead, be a world where information needs are met in a timely manner and Litigation is thereby avoided. A world where, if management needs to know something, such as whether so and so is a sexual predator, they can find out, fast. A world where AI in the hands of a skilled legal team can mine internal data-banks, such as very large collections of employee emails and texts, and find hidden patterns. It may find what was suspected or may lead to surprise discoveries.
The secret mining of data, otherwise known as “reading other people’s emails without their knowledge” may seem like an egregious breach of privacy, but it is not, at least not in the U.S. under the computer use policies of most groups. Employees typically consent to this search as a condition of employment or computer use. Usually the employer owns all of the equipment searched. The employee has no ownership, nor privacy rights in the business related communications of the employer.
The use of AI assistants in investigations limits the exposure of irrelevant information to humans. First, only a few people are involved in the investigation at all because the AI does the heavy lifting. Second, the human reviewers are outside of the organization. Third, the AI does almost all of the document review. Only the AI reads all of the communications, not the lawyers. The humans look at far less than one percent of the data searched in most projects. They spend most of their time in study of the documents the AI has already identified as likely relevant.
The approach of limited investigations, of going in and out of user data only to search in separate, discreet investigations, provides maximum confidentiality to the users. The alternative, which some organizations have already adopted, is constant surveillance by AI of all communications. You can predict future behavior that way, to a point and within statistical limitations of accuracy. The police in some cities are already using constant AI surveillance to predict crimes and allocate resources accordingly.
I find this kind of constant monitoring to be distasteful. For me, it is too Big Brother and oppressive to have AI looking at my every email. It stifles creativity and, I imagine, if this was in place, would make me overly cautious in my communications. Plus, I would be very concerned about software error. If some baby AI is always on, always looking for suspicious patterns, it could make mistakes. The programming of the software almost certainly contains a number of hidden biases of the programmers, typically young white dudes.
The one-by-one investigation approach advocated here provides for more privacy protection. With E-Vestigations the surveillance is focused and time limited. It is not general and ongoing.
Five Virtues of E-Vestigations
Although I am not going to go into the proprietary details here of our E-Vestigations service (contact me through my law firm if you want to know more), I do want to share what I think are the five most important traits of our AI (robotic) assisted reviews: economics, confidentiality, stealth, speed and accuracy.
Confidentiality:
Complete Secrecy.
Artificial Intelligence means fewer people are required.
Employee Privacy Rights Respected.
Data need never leave corporate premises using specialized tools from our vendor.
Attorney-Client Privilege & Work Product protected.
Stealthiness:
Under the Radar Investigation.
Only some in client IT need know.
Sensitive projects. Discreet.
Stealth forensic copy and review of employee data.
Attorneys review off-site, unseen, via encrypted online connection.
Private interviews; only where appropriate.
Speed:
Techniques designed for quick results, early assessments.
Informal, high-level investigations. Not Litigation Discovery.
High Speed Document Review with AI help.
Example: Study of Clinton’s email server (62,320 files, 30,490 disclosed – 55,000 pgs.) is, at most, a one-week project with a first report after one day.
Accuracy:
Objective Findings and Analysis.
Independent Position.
Specialized Expertise.
Answers provided with probability range limitations.
Known Unknowns (Rumsfeld).
Clients are impressed with the cost of E-Vestigations, as compared to traditional investigations. That is important, of course, but the speed of the work is what impresses many. We produce results, use a flat fee to get there, and do so very FAST.
Certainly we can move much faster than the FBI reviewing email using its traditional methods of expert linear review. The Clinton email investigations took forever by our standards. Yet, Clinton’s email server had only 62,320 files, of which 30,490 were disclosed (around 55,000 pages.) This is, at most, a one-week E-Vestigations project with a first report after one day. Our projects are much larger. They involve review of hundreds of thousands of emails, or hundreds of millions. It does not make a big difference in cost because the AI, who works for free, is doing the heavy lifting of actual studying of all this text.
Most federal agencies, including the FBI, do not have the software, the search knowledge, nor attorney skills for this new type of AI assisted investigation. They also do not have the budget to acquire good AI for assist. Take a look at this selection from the official FBI collection of Clinton email and note that the FBI and US Attorneys office in Alexandra Virginia were communicating by fax in September 2015!
State and federal government agencies are not properly funded and cannot compete with private industry compensation. The NSA may well have an A-Team for advanced search, but not the other agencies. As we know, the NSA has their hands full just trying to keep track of the Russians and other enemies interfering with our elections, not to mention the criminals and terrorists.
Unintended Consequence of Mediation Was to Insert Subjectivism into the Law
As discussed, the rise and commoditization of Mediation over the last twenty years has had unintended consequences. The move from the courtroom to the mediator’s office in turn caused the Law to move from objective to subjective opinion. Discussion of the consequences of mediation, and the subjectivist attitude it brings, complicates my analysis of the death of Litigation, but is necessary. Litigation did not turn into private investigation work. One did not flow into another. Litigation is not changing directly into private Investigations, AI assisted or not. Mediation, and its unexpected consequences, is the intervening stage.
1. Litigation → 2. Mediation → 3. AI Assisted Investigations
Mediation brought down Litigation, at least the all important Trial part of Litigation, not AI or private investigations. There is never a judge making rulings at a mediation. There are only attorneys and assertions of what. Somebody must be lying, but with Mediation you never know who. Lawyers found they could settle cases without all that. They did not need the judge at all. At mediation there are no findings of fact, no rulings of law, just droll agreements as to who will pay how much to whom.
The next stage I predict of AI Assisted Investigations is filling a gap caused by the unintended consequence of Mediation. Mediation was never intended to spawn AI Assisted Investigations, no such thing even existed. It was not possible. We did not have the technology to do something like this. The forces driving the advent of AI Assisted Investigations, which I call E-Vestigations, have little to do with Mediation directly, but are instead the result of rapid advances in technology.
Mediation was intended to encourage settlement and reduce expensive trials. It has been wildly successful at that; exceeded all expectations. But this surprise success has also led to unexpected negative consequences. It has led to a new subjectivistic attitude in Litigation. It has led to the decline of evidence and an over-relativistic attitude where Truth was dethroned.
Most of my Mediator friends strongly disagree, but I have never heard a compelling argument to the contrary. The death of the trial is a stunning development. But mediation has had another impact. One that I have not seen discussed previously. It has not only killed trials, it has killed the whole notion of objective truth. It has led to a mediation mind-set where the “merits” are just a matter of opinion. Where cost of defense and the time value of money are the main items of discussion.
That foreseeable defect has led to the unforeseeable development of an AI Assisted alternative to Litigation. It is led to E-Vestigations. AI can now be used to help lawyers investigate and quickly find out the true facts of a situation.
Many lawyers who litigate today do not care what “really happened.” Very post-modern of them, but come on? A few lawyers just blindly believe whatever damned fool thing their client tells them. Most just say we will never know the absolute truth anyway, so let us just try our best to resolve the dispute and do what’s fair without any test of the evidence. They try to do justice with just a passing nod to the evidence, to the truth of what happened. I am not a fan. It goes against all of my core teachings as a young commercial litigation attorney who prepared and tried cases. It goes against my core values and belief. My opinion is that it is not all just opinion, that there is truth.
I object to that mediation, relativistic approach. After a life in the Law chasing smoking guns and taking depositions, I know for a fact that witnesses lie, that their memories are unreliable, all too human. But I also know that the writings made by and to these same witness often expose the lies, or, more charitably put, expose the errors in human memory. Fraudsters are human and almost always make mistakes. It is an investigator’s job to check the record to find the slip-ups in the con. (I dread the day when I have to try to trace a AI fraudster!)
I have been chasing and exposing con-men most of my adult life. I defended a few too. In my experience the truth has a way of finding its way out.
This is not an idealistic dream in today’s world of information floods. There is so much information, the real difficulty is in finding the important bits, the smoking guns, the needles. The evidence is usually there, but not yet found. The real challenge today is not in gathering the evidence, it is in searching for the key documents, finding the signal in the noise.
Conclusion
Objective accounts of what happened in the past are not only possible, they are probable in today’s Big Data world. Your Alexa or Google speakers may have part of the record. So too may your iWatch or Fitbit. Soon your refrigerator will too. Data is everywhere. Privacy is often an illusion. (Sigh.) The opportunity of liars and other scoundrels to “get away with it” and fool people is growing smaller every day. Fortunately, if lawyers can just learn a few new evidence search skills, they can use AI to help them find the information they need.
Juries and judges, for the most part, believe in objective truth. They are quite capable of sorting through competing versions and getting at the truth. Good judges and lawyers (and jurors) can make sure that happens.
As mentioned, many academics and sophisticates believe otherwise, that there is no such a thing as objective truth. They believe instead in Relativism. They are wrong.
The postmodernist argument that all truths are partial (and a function of one’s perspective) led to the related argument that there are many legitimate ways to understand or represent an event. . . .
Without commonly agreed-upon facts — not Republican facts and Democratic facts; not the alternative facts of today’s silo-world — there can be no rational debate over policies, no substantive means of evaluating candidates for political office, and no way to hold elected officials accountable to the people. Without truth, democracy is hobbled. The founders recognized this, and those seeking democracy’s survival must recognize it today.
It is possible to find the truth, objective truth. All is not just opinion and allegations. Accurate forensic reconstruction is possible today in ways that we could never have imagined before. So is AI assisted search. The record of what is happening grows larger every day. That record written electronically at the time of the events in question is far more reliable than our memories. We can find the truth, but for that need to look primarily to the documents, not the testimony. That is not new. That is wisdom upon which almost all trial lawyers agree.
The truth is attainable, but requires dedication and skilled efforts by everyone on a legal team to find it. It requires knowledge of course, and a proven method, but also impartiality, discipline, intelligence and a sense of empathy. It requires experience with what the AI can do, and just as important, what it cannot do. It requires common sense. Lawyers have that. Jurors have that.
Surely only a weak-minded minority are fooled by today’s televised liars. Most competent trial lawyers could persuade a sequestered jury to convict them. And convict they will, but that still will not cause of rebirth of Litigation. Its’ glory days are over. So too is its killer, Mediation, although its death will take longer (Mediation may not even have peaked yet).
Evidence speaks louder than any skilled mediator. Let the truth be told. Let the chips fall where they may. King Litigation is dead. Long live the new King, confidential, internal AI assisted E-Vestigations.
There is a new case out of Chicago that advances the jurisprudence of my sub-specialty, Legal Search. City of Rockford v. Mallinckrodt ARD Inc., 2018 WL 3766673, Case 3:17-cv-50107 (N.D. Ill., Aug. 7, 2018). This discovery order was written by U.S. Magistrate Judge Iain Johnston who entitled it: “Order Establishing Production Protocol for Electronically Stored Information.” The opinion is both advanced and humorous, destined to be an oft-cited favorite for many. Thank you Judge Johnston.
In City of Rockford an Elusion random sample quality assurance test was required as part of the parties discovery plan to meet the reasonable efforts requirements of Rule 26(g). The random sample procedure proposed was found to impose only a proportional, reasonable burden under Rule 26(b)(1). What makes this holding particularly interesting is that an Elusion test is commonly employed in predictive coding projects, but here the parties had agreed to a keyword search based discovery plan. Also see:Tara Emory, PMP, Court Holds that Math Matters for eDiscovery Keyword Search, Urges Lawyers to Abandon their Fear of Technology (Driven, (August 16, 2018) (“party using keywords was required to test the search effectiveness by sampling the set of documents that did not contain the keywords.”)
The Known Unknowns and Unknown Unknowns
Judge Johnston begins his order in City of Rockford with a famous quote by Donald Rumseld, a two-time Secretary of Defense.
“[A]s we know there are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. . .”
Anybody who does complex investigations is familiar with this problem. Indeed, you can argue this insight is fundamental to all of science and experimental method. Logan, David C. (March 1, 2009). “Known knowns, known unknowns, unknown unknowns and the propagation of scientific enquiry”, Journal of Experimental Botany 60 (3). pp. 712–4. [I have always wanted to quote a botany journal.]
How do you deal with the known unknowns and the unknown unknowns, the information that we don’t even know that we don’t know about? The deep, hidden information that is both obtuse and rare. Information that is hard to retrieve and harder still to prove does not exist at all. Are you chasing something that might not exist? Something unknown because nonexistent? Such as an overlooked Highly Relevant document? (The stuff of nightmares!) Are you searching for nothing? Zero? If you find it, what does that mean? What can be known and what can never be known? Scientists, investigators and the Secretary of Defense alike all have to ponder these questions and all want to use the best tools and best people possible to do so. See: Deconstructing Rumsfeld: Knowledge and Ignorance in the Age of Innovation (Inovo 5/114).
Seeking Knowledge of the Unknown Elusion Error Rate
These big questions, though interesting, are not why Judge Johnston started his opinion with the Rumseld quote. Instead, he used the quote to emphasize that new e-discovery methods, namely random sampling and statistical analysis, can empower lawyers to know what they never did before. A technical way to know the known unknowns. For instance, a way to know the number of relevant documents that will be missed and not produced: the documents that elude retrieval.
As the opinion and this blog will explain, you can do that, know that, by using an Elusion random sample of the null-set. The statistical analysis of the sample transforms the unknown quantity to a known (subject to statistical probabilities and range). It allows lawyers to know, at least within a range, the number of relevant documents that have not been found. This is a very useful quality assurance method that relies on objective measurements to demonstrate success of your project, which here is information retrieval. This and other random sampling methods allow for the calculation of Recall, meaning the percent of total relevant documents found. This is another math-based, quality assurance tool in the field of information retrieval.
A producing party must determine that its search process was reasonable. In many cases, the best way to do this is with objective metrics. Producing parties often put significant effort into brainstorming keywords, interviewing witnesses to determine additional terms, negotiating terms with the other party, and testing the documents containing their keywords to eliminate false positives. However, these efforts often still fail to identify documents if important keywords were missed, and sampling the null set is a simple, reasonable way to test whether additional keywords are needed. …
It is important to overcome the fear of technology and its related jargon, which can help counsel demonstrate the reasonableness of search and production process. As Judge Johnston explains, sampling the null set is a process to determine “the known unknown,” which “is the number of the documents that will be missed and not produced.” Judge Johnson disagreed with the defendants’ argument “that searching the null set would be costly and burdensome.” The Order requires Defendants to sample their null set at a 95% +/-2% margin of error (which, even for a very large set of documents, would be about 2,400 documents to review).[4] By taking these measures—either with TAR or with search terms, counsel can more appropriately represent that they have undertaken a “reasonable inquiry” for relevant information within the meaning of FRCP 26(g)(1).
Small Discovery Dispute in an Ocean of Cooperation
Judge Johnston was not asked to solve the deep mysteries of knowing and not knowing in City of Rockford. The parties came to him instead with an interesting, esoteric discovery dispute. They had agreed on a great number of things, for which the court profusely congratulated them.
The attorneys are commended for this cooperation, and their clients should appreciate their efforts in this regard. The Court certainly does. The litigation so far is a solid example that zealous advocacy is not necessarily incompatible with cooperation. The current issue before the Court is an example of that advocacy and cooperation. The parties have worked to develop a protocol for the production of ESI in this case, but have now reached an impasse as to one aspect of the protocol.
The parties disagreed on whether to include a document review quality assurance test in the protocol. The Plaintiffs wanted one and the Defendants did not. Too burdensome they said.
To be specific, the Plaintiffs wanted a test where the efficacy of any parties production would be tested by use of an Elusion type of Random Sample of the documents not produced. The Defendants opposed any specific test. Instead, they wanted the discovery protocol to say that if the receiving party had concerns about the adequacy of the producing party’s efforts, then they would have a conference to address the concerns.
Judge Johnston ruled for the plaintiff in this dispute and ordered a random elusion sample to be taken after the defendant stopped work and completed production. In this case it was a good decision, but should not be routinely required in all matters.
The Stop Decision and Elusion Sample
One of the fundamental problems in any investigation is to know when you should stop the investigation because it is no longer worth the effort to carry on. When has a reasonable effort been completed? Ideally this happens after all of the important documents have already been found. At that point you should stop the effort and move on to a new project. Alternatively, perhaps you should keep on going and look for more? Should you stop or not?
In Legal Search we all this the “Stop Decision.” Should you conclude the investigation or continue further AI training rounds and other search. As explained in the e-Discovery Team TAR Course:
The all important stop decision is a legal, statistical decision requiring a holistic approach, including metrics, sampling and over-all project assessment.You decide to stop the review after weighing a multitude of considerations. Then you test your decision with a random sample in Step Seven.
If you want to go deeper into this, then listen in on this TAR Course lecture on the Stop decision.
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Once a decision is made to Stop, then a well managed document review project will use different tools and metrics to verify that the Stop decision was correct. Judge Johnston in City of Rockford used one of my favorite tools, the Elusion random sample that I teach in the e-Discovery Team TAR Course. This type of random sample is called an Elusion sample.
Judge Johnston ordered an Elusion type random sample of the null set in City of Rockford. The sample would determine the range of relevant documents that likely eluded you. These are called False Negatives. Documents presumed Irrelevant and withheld that were in fact Relevant and should have been produced. The Elusion sample is designed to give you information on the total number of Relevant documents that were likely missed, unretrieved, unreviewed and not produced or logged. The fewer the number of False Negatives the better the Recall of True Positives. The goal is to find, to retrieve, all of the Relevant ESI in the collection.
Another way to say the same thing is to say that the goal is Zero False Negatives. You do not miss a single relevant file. Every file designated Irrelevant is in fact not relevant. They are all True Negatives. That would be Total Recall: “the Truth, the Whole Truth …” But that is very rare and some error, some False Negatives, are expected in every large information retrieval project. Some relevant documents will almost always be missed, so the goal is to make the False Negatives inconsequential and keep the Elusion rate low.
Here is how Judge Iain Johnston explained the random sample:
Plaintiffs propose a random sample of the null set. (The “null set” is the set of documents that are not returned as responsive by a search process, or that are identified as not relevant by a review process. See Maura R. Grossman & Gordon v. Cormack, The Grossman-Cormack Glossary of Technology-Assisted Review, 7 Fed. Cts. L. Rev. 1, 25 (2013). The null set can be used to determine “elusion,” which is the fraction of documents identified as non-relevant by a search or review effort that are, in fact, relevant. Elusion is estimated by taking a random sample of the null set and determining how many or what portion of documents are actually relevant. Id. at 15.) FN 2
Judge Johnston’s Footnote Two is interesting for two reasons. One, it attempts to calm lawyers who freak out when hearing anything having to do with math or statistics, much less information science and technology. Two, it does so with a reference to Fizbo the clown.
The Court pauses here for a moment to calm down litigators less familiar with ESI. (You know who you are.) In life, there are many things to be scared of, including, but not limited to, spiders, sharks, and clowns – definitely clowns , even Fizbo. ESI is not something to be scared of. The same is true for all the terms and jargon related to ESI. … So don’t freak out.
Accept on Zero Error for Hot Documents
Although this is not addressed in the court order, in my personal view, no False Negatives, iw – overlooked documents – are acceptable when it comes to Highly Relevant documents. If even one document like that is found in the sample, one Highly Relevant Document, then the Elusion test has failed in my view. You must conclude that the Stop decision was wrong and training and document review must recommence. That is called an Accept on Zero Error test for any hot documents found. Of course my personal views on best practice here assume the use of AI ranking, and the parties in City of Rockford only used keyword search. Apparently they were not doing machine training at all.
The odds of finding False Negatives, assuming that only a few exist (very low prevalence) and the database is large, are very unlikely in a modest sized random sample. With very low prevalence of relevant ESI the test can be of limited effectiveness. That is an inherent problem with low prevalence and random sampling. That is why statistics have only limited effectiveness and should be considered part of a total quality control program. SeeZero Error Numerics: ZEN. Math matters, but so too does good project management and communications.
The inherent problem with random sampling is that the only way to reduce the error interval is to increase the size of the sample. For instance, to decrease the margin of error to only 2% either way, a total error of 4%, a random sample size of around 2,400 documents is needed. Even though that narrows the error rate to 4%, there is still another error factor of the Confidence Level, here at 95%. Still, it is not worth the effort to review even more sample documents to reduce that to a 99% Level.
Random sampling has limitations in low prevalence datasets, which is typical in e-discovery, but still sampling can be very useful. Due to this rarity issue, and the care that producing parties always take to attain high Recall, any documents found in an Elusion random sample should be carefully studied to see if they are of any significance. We look very carefully at any new documents found that are of a kind not seen before. That is unusual. Typically any relevant documents found by random sample of the elusion set are of a type that have been seen before, often many, many times before. These “same old, same old” type of documents are of no importance to the investigation at this point.
Most email related datasets are filled with duplicative, low value data. It is not exactly irrelevant noise, but it is not a helpful signal either. We do not care if we get all of that kind of merely relevant data. What we really want are the Hot Docs, the high value Highly Relevant ESI, or at least Relevant and of a kind not seen before. That is why the Accept On Zero Error test is so important for Highly Relevant documents.
The Elusion Test in City of Rockford
In City of Rockford Judge Johnston considered a discovery stipulation where the parties had agreed to use a typical keyword search protocol, but disagreed on a quality assurance protocol. Judge Johnston held:
With key word searching (as with any retrieval process), without doubt, relevant documents will be produced, and without doubt, some relevant documents will be missed and not produced. That is a known known. The known unknown is the number of the documents that will be missed and not produced.
Back to the False Negatives again, the known unknown. Judge Johnston continues his analysis:
But there is a process by which to determine that answer, thereby making the known unknown a known known. That process is to randomly sample the nullset. Karl Schieneman & Thomas C. Gricks III, The Implications of Rule26(g) on the Use of Technology-Assisted Review, 2013 Fed. Cts. L. Rev. 239, 273 (2013)(“[S]ampling the null set will establish the number of relevant documents that are not being produced.”). Consequently, the question becomes whether sampling the null set is a reasonable inquiry under Rule 26(g) and proportional to the needs of this case under Rule 26(b)(1).
Rule 26(g) Certification
Judge Johnston takes an expansive view of the duties placed on counsel of record by Rule 26(g), but concedes that perfection is not required:
Federal Rule of Civil Procedure 26(g) requires all discovery requests be signed by at least one attorney (or party, if proceeding pro se). Fed. R. Civ. P. 26(g)(1). By signing the response, the attorney is certifying that to the best of counsel’s knowledge, information, and belief formed after a reasonable inquiry, the disclosure is complete and correct at the time it was made. Fed. R. Civ. P. 26(g)(1)(A). But disclosure of documents need not be perfect. … If the Federal Rules of Civil Procedure were previously only translucent on this point, it should now be clear with the renewed emphasis on proportionality.
Judge Johnston concludes that Rule 26(g) on certification applies to require the Elusion sample in this case.
Just as it is used in TAR, a random sample of the null set provides validation and quality assurance of the document production when performing key word searches. Magistrate Judge Andrew Peck made this point nearly a decade ago. See William A. Gross Constr. Assocs., 256 F.R.D. at 135-6 (citing Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 262 (D. Md. 2008)); In re Seroquel Products Liability Litig., 244 F.R.D. 650, 662 (M.D. Fla. 2007) (requiring quality assurance).
Accordingly, because a random sample of the null set will help validate the document production in this case, the process is reasonable under Rule 26(g).
Rule 26(b)(1) Proportionality
Judge Johnston considered as a separate issue whether it was proportionate under Rule 26(b)(1) to require the elusion test requested. Again, the court found that it was in this large case on the pricing of prescription medication and held that it was proportional:
The Court’s experience and understanding is that a random sample of the null set will not be unreasonably expensive or burdensome. Moreover and critically, Defendants have failed to provide any evidence to support their contention. Mckinney/Pearl Rest. Partners, L.P. v. Metro. Life Ins. Co., 322 F.R.D. 235, 242 (N.D.Tex. 2016) (party required to submit affidavits or offer evidence revealing the nature of the burden)
Judge Johnston concludes his “Order Establishing Production Protocol for Electronically Stored Information” with the following:
The Court adopts the parties’ proposed order establishing the production protocol for ESI with the inclusion of Plaintiffs’ proposal that a random sample of the null set will occur after the production and that any responsive documents found as a result of that process will be produced. Moreover, following that production, the parties should discuss what additional actions, if any, should occur. If the parties cannot agree at that point, they can raise the issue with the Court.
Conclusion
City of Rockford is important because it is the first case to hold that a quality control procedure should be used to meet the reasonable efforts certification requirements of Rule 26(g). The procedure here required was a random sample Elusion test with related, limited data sharing. If this interpretation of Rule 26(g) is followed by other courts, then it could have a big impact on legal search jurisprudence. Tara Emory in her article, Court Holds that Math Matters for eDiscovery Keyword Search goes so far as to conclude that City of Rockford stands for the proposition that “the testing and sampling process associated with search terms is essential for establishing the reasonableness of a search under FRCP 26(g).”
The City of Rockford holding could persuade other judges and encourage courts to be more active and impose specific document review procedures on all parties, including requiring the use of sampling and artificial intelligence. The producing party cannot always have a free pass under Sedona Principle Six. Testing and sampling may well be routinely ordered in all “large” document review cases in the future.
It will be very interesting to watch how other attorneys argue City of Rockford. It will continue a line of cases examining methodology and procedures in document review. See eg., William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134 (S.D.N.Y. 2009) (“wake-up call” for lawyers on keyword search); Winfield v. City of New York (SDNY, Nov. 27, 2017), where Judge Andrew Peck considers methodologies and quality controls of the active machine learning process. Also see Special Master Maura Grossman’sOrder Regarding Search Methodology for ESI, a validation Protocol for the Broiler Chicken antitrust cases.
The validation procedure of an Elusion sample in City of Rockford is just one of many possible review protocols that a court could impose under Rule 26(g). There are dozens more, including whether predictive coding should be required. So far, courts have been reluctant to order that, as Judge Peck explained in Hyles:
There may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR. We are not there yet.
Hyles v. New York City, No. 10 Civ. 3119 (AT)(AJP), 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016):
Like a kid in the backseat of the car, I cannot help but ask, are we there yet?Hyles was published over two years ago now. Maybe some court, somewhere in the world, has already ordered a party to do predictive coding against their will, but not to our knowledge. That is a known unknown. Still, we are closer to “There” with the City of Rockford’s requirement of an Elusion test.
When we get “there,” and TAR is finally ordered in a case, it will probably arise in a situation like City of Rockford where a joint protocol applicable to all parties is involved. That is easier to sell than a one-sided protocol. The court is likely to justify the order by Rule 26(g), and hold that it requires all parties in the case to use predictive coding. Otherwise, they will not meet the reasonable effort burdens of Rule 26(g). Other rules will be cited too, of course, including Rule 1, but Rule 26(g) is likley to be key.
Ralph Losey is an Arbitrator, Special Master, Mediator of Computer Law Disputes and Practicing Attorney, partner in LOSEY PLLC. Losey is a high tech law firm with three Loseys and a bunch of other cool lawyers. We handle projects, deals, IP of all kinds all over the world, plus litigation all over the U.S. For more details of Ralph's background, Click Here
All opinions expressed here are his own, and not those of his firm or clients. No legal advice is provided on this web and should not be construed as such.
Ralph has long been a leader of the world's tech lawyers. He has presented at hundreds of legal conferences and CLEs around the world. Ralph has written over two million words on e-discovery and tech-law subjects, including seven books.
Ralph has been involved with computers, software, legal hacking and the law since 1980. Ralph has the highest peer AV rating as a lawyer and was selected as a Best Lawyer in America in four categories: Commercial Litigation; E-Discovery and Information Management Law; Information Technology Law; and, Employment Law - Management.
Ralph is the proud father of two children, Eva Losey Grossman, and Adam Losey, a lawyer with incredible 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.