A short poem by ChatGPT, as engineered and quality controlled by all-too-human, Ralph Losey. Ralph prompted the Ai to generate a simple rhyming poem that summarizes the fourteen Principles of The Sedona Conference®. These are, in Ralph’s opinion, good words for anyone to remember and live by in the field of electronic evidence.
Introduction by Ralph Losey (without AI assistance)
Ai enhanced Ralph Losey photo
Regular readers of my blog know that I have included the Fourteen Sedona Principles at the bottom of the right column of my blog for over fourteen years. Although I sometimes quibble with the language of Principle Six, I am a strong believer in these principles and consider them authoritative. The latest Third Edition of the Principles is on the blog now. I keep them there as a handy reference and, although no longer a member, continue to hold The Sedona Conference® in high esteem. See my recent blog, Homage to Richard Braman and the Sedona Conference.
I have often wondered if the reason so many lawyers do not follow the Sedona Principles is because they do not understand them. They are written at a law school law review or higher reader level. They are written by committees. The Sedona commentaries are written at an even higher and complex level than most post-graduate work.
Let’s face it, many lawyers have not been forced to read legal texts since in law school, much less law review articles or other challenging legal commentaries. Most lawyers, if they read at all, read newspapers, magazines, social media and the like. It is well known that they are all written at a High School Eleventh Grade level. I suspect many judges keep this in mind when writing their opinions. Due to this constant exposure to simplified Eleventh Grade of High School reading level, this is what most people in the U.S. get used to reading, including lawyers. I do not mean to be insulting, it is just the way it is. Although I am an avid reader, I often have the same problem when entering for the first time an arcane area of study that is new to me.
For ease of comparison I put the original and Eleventh Grade versions of the fourteen Sedona Principles side by side below. Of course, I do not claim any copyright to them. And should the current leaders of The Sedona Conference® somehow take umbrage with this experiment (unlikely), I would with some sadness take this down. Better yet, I’d give them all revenue from this blog article (none) (there never has been ads or revenue from this blog).
Ai enhanced Ralph Losey photo
I conclude this blog with an even more interesting ChatGPT experiment. I ask the generative Ai to rewrite the Sedona Principles at a second grade level. Again, I don’t mean to suggest lawyers need things dumbed down that much, but I have found that ChatGPT is especially good at such rewriting. You will see several examples of this on my blog. This 7 to 8 year old reading level (which my seven year old granddaughter has long surpassed) distills things to their essence. It often uses clever wording and child-like images.
This second grader rewrite of the Sedona Principles once again knocked my socks off. Incredible. Remember I did not change a thing to either of these ChatGPT rewrites. Even the introduction to the principles for second graders was the Ai’s idea. I only take credit for the generative engineering. I love it and hope you will too. I especially hope that my friends at The Sedona Conference® like it. We all have the same goal of education.
Getting back to the 11th grade reading level, the first thing you may notice is the 11th grade rewrite is a lot shorter. ChatGPT is noted for being wordy, verbose even, yet it is still far more concise then the Sedona original. Hmm. Perhaps the shortened, easier to read version changes the meaning somehow, but I don’t think so. Seems to me like the Ai did a pretty good job. In fact, I prefer the way it rewrote Principle Six. That is the principle whose wording I criticized and urged its revision when the third edition was out for public comment. (No change was made.) Protecting the Fourteen Crown Jewels of the Sedona Conference in the Third Revision of its Principles (April 2, 2017). These Ai rewrites may not be popular among some members of The Sedona Conference®, but personally, I think some of the edits are long overdue. Sometimes, less is more. Look out Sedona, the Ai editing robots are coming!
Actual photo of the first wave of the Robot invasion of Sedona
In my view the Chat GPT’s rewrites here do not distort anything. Of course, some Sedona experts might disagree with my assessment. (Hey, we are lawyers, excessive argumentation is an occupational hazard.) I will always defer to the great Ken Withers of the Sedona Conference, should he say so. Ken taught me so much over the years. He is one of the great authorities and legal teachers in the country with a very impressive vocabulary. His linguistic abilities might even be better than two of my other linguistically gifted friends from Sedona days, Jason R. Baron and Judge John Facciola. They also have astounding vocabularies and constantly make learned, arcane (to me at least) references. Maybe they will comment.
Fourteen Sedona Principals Rewritten by Chat GPT for an Eleventh Grade Reading Level
ELEVENTH GRADE LEVEL
1. Electronically stored information (ESI) is subject to the same preservation and discovery requirements as other relevant information.
2. When it comes to ESI, courts and parties should use the proportionality standard set by Fed. R. Civ. P. 26(b)(2)(C) and its state equivalents. This means considering the importance of the issues, the amount of money involved, each party’s access to information, their resources, the importance of the discovery to the case, and whether the cost of the discovery outweighs its benefit.
3. Parties should try to reach an agreement on preserving and producing ESI as soon as possible.
4. Requests for ESI should be specific, and responses and objections should make it clear what will be produced.
5, Parties must make reasonable and good faith efforts to keep ESI that could be relevant to a claim or defense. However, it’s not necessary to take every possible step or use disproportionate means to preserve every piece of ESI.
6. Responding parties are in the best position to decide how to preserve and produce their own ESI.
7. If a responding party’s efforts to preserve and produce ESI are not enough, it’s up to the requesting party to prove that.
8. Parties should start by looking for ESI in the most accessible places. If that’s not possible, they can move to less accessible sources, but only if it’s proportional to the needs of the case.
9. Unless there’s a good reason, a responding party shouldn’t have to preserve, review, or produce deleted, shadowed, fragmented, or residual ESI.
10. Parties must protect ESI that’s subject to privileges, work product protections, privacy obligations, or other legally enforceable restrictions.
11. A responding party can meet their obligation to preserve and produce relevant ESI by using technology like data sampling, searching, or selection criteria.
12. ESI should be produced in the form it’s normally kept, or a reasonably usable form based on the nature of the information and the needs of the case.
13. Unless there’s a good reason, the responding party should bear the cost of preserving and producing ESI.
14. If a party breaches their duty to preserve ESI, the court can order remedial measures to fix any harm caused. Sanctions can be imposed if a party deliberately tries to keep relevant ESI from being used.
ORIGINAL SEDONA CONFERENCE LEVEL
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.
Fourteen Sedona Principles Redrafted by Chat GPT at a Second Grade Level
Okay, so let’s talk about finding information on computers and phones. Sometimes, when people are in a disagreement and need to go to court to figure it out, they might need to look at messages or pictures that are saved on electronic devices.
There are some rules that everyone has to follow when looking for this kind of information.
1. Electronic information is just as important as other kinds of information, so it has to be taken care of and looked at carefully.
2. When someone is trying to find information, they have to be fair and not ask for too much or things that aren’t really needed. They also have to think about the cost and whether it’s worth it to look for the information.
3. Everyone has to work together and talk about how they’re going to look for and share the information.
4. When someone asks for information, they have to be very clear about what they want, and the other person has to say exactly what they will give them.
5. People have to try to keep important information safe, but they don’t have to keep everything.
6. The person who has the information is the best person to decide how to keep it safe and share it.
7. If someone thinks that the other person didn’t keep the information safe, they have to prove it.
8. When someone is looking for information, they should start by looking in the easiest places to find it.
9. People don’t have to look for information that has been deleted or is hard to find, unless there is a really good reason.
10. If information is private, people have to make sure it stays private.
11. There are special tools that can help find information, like searching through it or looking at a sample of it.
12. When information is shared, it should be in a way that makes sense and is easy to understand.
13. The person who has the information has to pay to keep it safe and share it, unless there is a good reason not to.
14. If someone breaks the rules and doesn’t take care of the information or tries to hide it on purpose, the court can make them fix the problem and even punish them.
Richard Braman (1953-2014) founded The Sedona Conference® in 1997. Before that he was a top litigator in San Francisco and Minneapolis where he also owned and operated a jazz club, Gabriel’s. For that reason, I feel certain he would smile at this essay using jazz images to describe the essence of the Sedona Principles that he loved so dearly.
Article written by Open AI’s ChatGPT with all-too-human prompt engineering by Ralph Losey. Hat’s off to ChatGPT-Plus for the excellent jazz-based images and writing. All images by Dall-E and Losey.
In the realm of electronic discovery, a certain rhythm permeates the airwaves, one that resonates with the pulse of jazz music. A harmonious interplay between those who seek information and those who hold it, creates an intriguing melody that’s both enchanting and demanding. The rules that govern this space are like the musical notes that make up a tune, essential to the experience of the listener, the same way that following the right protocol is essential to the seeker’s success.
In this jazz-infused world, the importance of electronic information is akin to the fundamental nature of a rhythm section in a jazz ensemble. Just as the bass, drums, and piano are integral to the musicality of jazz, electronic data is vital to modern life. Its significance is such that it must be carefully tended to, given the same consideration as any other kind of data.
When a seeker is searching for electronic data, they must adopt a musician’s mentality, avoiding excessive requests that sound like dissonant notes in a melody. Their goal should be to play a smooth tune, one that strikes the right chords, avoiding notes that don’t fit. Just as a jazz musician must be aware of their musical costs, a seeker must consider the expenses of pursuing information, keeping in mind the value of the information that is sought.
Just like a jazz band, those who seek and those who hold electronic data must work together in a harmonious exchange. A melody is only successful when everyone plays their part, just like a search for electronic data can only be accomplished with cooperation between parties. A clear and concise request from the seeker must be met with a reply that’s just as clear, like a musician playing a melody that’s understandable to their audience.
In this jazz world of electronic discovery, keeping data secure is like a trumpet player protecting their prized instrument. It’s the responsibility of the data owner to ensure that the data is safeguarded, but they don’t have to keep every single piece of data. Like a jazz musician who only keeps the essential notes to make a melody work, a data owner must protect what is necessary while disregarding what isn’t.
In the event of a dispute, it’s important to have proof, just like a jazz musician who has to demonstrate their musical chops on stage. To prove a point, it’s necessary to play the right notes, and in electronic discovery, it’s crucial to present the right data. The seeker should start by looking in the most accessible places, just like a musician who looks for the right melody in the most obvious places.
If data has been deleted or hard to find, it’s not essential to search for it unless there’s a good reason. Like a jazz musician who only plays what is necessary, the seeker must focus on what’s important to the case at hand. Privacy is another significant concern in this world, like a jazz musician who has to play with a level of restraint to maintain their musical dignity.
In the world of electronic discovery, there are tools that are available to aid in the search for data, just like a jazz musician who uses instruments to create their musical sound. These tools are designed to simplify the process and streamline it, much like a musician who uses new technology to create new sounds.
When data is shared, it should be presented in a way that’s easily understood, like a jazz musician who communicates their musical ideas to their listeners. The data owner is responsible for paying for the safekeeping and sharing of the data, much like a jazz promoter who takes care of the musical instruments and ensures that the performance runs smoothly.
In conclusion, the world of electronic discovery is like a jazz composition, with each player fulfilling a vital role. The right notes, played at the right time, create a melody that’s pleasing to the ears. Similarly, following the right protocols and rules in electronic discovery ensures a successful outcome. Like a jazz musician who respects the music and the other musicians on stage, those who seek and those who hold electronic data must work together with respect and integrity. Only then can the music of electronic discovery be played in perfect harmony, creating a beautiful sound that’s worthy of applause.
Plato and Socrates were two important people who lived a long, long time ago. Plato was a writer who wrote about many important ideas. Socrates was a teacher who taught people how to think and solve problems.
Plato was one of Socrates’ students and he liked Socrates’ teaching so much that he wrote about it. Socrates was famous for asking a lot of questions and helping people find their own answers. He wanted people to think for themselves and understand things deeply. Plato and Socrates are still remembered today because they had important ideas about how we should live our lives and think about the world. They believed that learning and thinking carefully was very important.
Plato wrote a special story about people living in a cave. It’s a famous story that people still talk about today. The story helps us understand the world and how we relate to others.
Problem of Many Lawyers
The problem for lawyers is that technology changes a lot and they have trouble finding important information. This is causing trouble for the whole legal system. Many lawyers only look for the important information in papers. That is a mistake because the papers are just printouts of original information. They are like shadows. They are not the real information from the whole world.
Teachers and trainers can help lawyers learn about finding information on computers by using a fun way of teaching. This way, they will learn how to do it really well and have a good understanding of the subject. By doing this, they will be able to solve any problems they might have with finding information on computers and not have big problems in their job later on. Teachers should try to make learning fun and exciting by doing activities and games, instead of just talking or showing pictures on a screen.
By understanding the Cave story and learning about electronic information, lawyers can become better at their jobs. They will be able to handle the problems with technology and make sure they are doing the right thing. This will make the legal system run better for everyone.
Plato’s Allegory of the Cave
Plato wrote a story a long time ago called “The Cave.” It’s about some people who live in a cave and can only see shadows on the wall from people walking by outside. They think the shadows are the real people, but they are just shadows. This story is about how sometimes we only see things in a certain way and we don’t really know the truth. Like when you see a shadow puppet on the wall, it’s not the real thing.
One day a man in the cave, who had only seen shadows on the wall, his whole life, was freed from the cave. He was taken outside the cave into the bright light. He could finally see the real world and everything that was really there. He went back to the cave to tell his friends, but they didn’t believe him and thought he was crazy. They only knew the shadows and didn’t understand what he was talking about. The man tried to show them, but they wouldn’t listen and even got mad at him.
Plato’s cave story is about helping someone see things in a better way. It’s like when your eyes are closed, and you can’t see anything. But if someone helps you open your eyes and turn them in the right direction, then you can see things clearly. That’s what the cave story is about, helping people see things the right way.
Here is a poem to explain Plato’s story in a slightly different way.
Once upon a time there was a man in a cave
Who had only seen shadows on the wall, his whole life
He was taken outside and shown the light
And saw the real world, and all its strife
He wanted to go back and tell his friends
But they wouldn’t believe, and thought him mad
He tried to show them, but they wouldn’t listen
And even got mad and made him sad
Plato’s cave story is all about seeing
Helping someone find what’s really there
It’s like when your eyes are closed
And you can’t see, but someone helps you to stare
So if you’re ever feeling lost and confused
And you don’t know which way to turn
Take a moment, and look up to the sky
And the truth that you seek, you will learn
Paper Lawyers
Many lawyers are like people who grew up before computers were invented. They love paper because they grew up with it and have always known it. They learned to read and study from paper books, went to law school where they learned about legal papers, and their professors also taught them with paper books and charts. They are used to seeing lots of paper in their work and even when they learn about evidence in court, they use paper documents.
After school, older lawyers give new lawyers an endless supply of extra long paper, called legal pads, and do their best to keep them up to their neck in paper work. They are shown how to generate papers, copy papers, pile papers, file papers, notarize papers, shuffle papers, staple papers, clip papers, highlight papers, redact papers, watermark papers, and even add paper stickums to paper. They also learn how to keep paper calendars, speed-read large files full of papers, spot check papers, and carefully proof-read papers till they are perfect.
Some lawyers cover all the furniture in their office with lots of papers. They even make a path with stacks of paper so they have to climb over them to get to their desk, which is also covered in papers. Papers make lawyers feel happy and important. They show everyone how hard they work. They even put some special papers on their walls. Some lawyers learn how to send papers far away quickly using a special machine called a fax. They also learn how to send letters to each other using the computer and print out important ones to keep in their office.
Most judges and the court like papers too. Lawyers have to give papers to the people they are working with and the people they are against, give papers to the court, and make special papers to show in court. When they ask someone questions, they have to mark papers and give them to the helper, the other lawyer, the judge, and then the person they are asking. Some lawyers even make their favorite papers very big so everyone can see them easily.
Trial lawyers are really good with papers. They learn how to follow the papers, find lots of papers in other people’s special drawers, make copies of the papers, stamp the papers to make them official, show the papers, and then tell the judge and the people listening what the papers mean. Some even learn special ways to mark the papers so they can see the order of them.
Lawyers spend a lot of time with paper. They start the day by reading a special paper called a newspaper. When they’re not working, they read fun paper books and magazines. They work with paper and even have fun with paper at home. Lawyers are really good at understanding what papers mean. They are the best at reading and filling out special papers called forms. They can read very long and complicated papers and understand them. Lawyers look at papers a lot.
Just like the people in Plato’s story, lawyers don’t know that their favorite papers are just like shadows, copies of something that exists on a computer.
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.
Posted by Ralph Losey 
e-Discovery Team ® 