e-Discovery Team’s 2016 TREC Report: Once Again Proving the Effectiveness of Our Standard Method of Predictive Coding

February 24, 2017

Team_TRECOur Team’s Final Report of its participation in the 2016 TREC ESI search Conference has now been published online by NIST and can be found here. TREC stands for Text Retrieval Conference. It is co-sponsored by a group within the National Institute of Standards and Technology (NIST), which is turn is an agency of the U.S. Commerce Department. The stated purpose of the annual TREC conference is to encourage research in information retrieval from large text collections.

The other co-sponsor of TREC is the United States Department of Defense. That’s right, the DOD is the official co-sponsor of this event, although TREC almost never mentions that. Can you guess why the DOD is interested? No one talks about it at TREC, but I have some purely speculative ideas. Recall that the NSA is part of the DOD.

We participated in one of several TREC programs in both 2015 and 2016, the one closest to legal search, called the Total Recall Track. The leaders, administrators of this Track were Professors Gordon Cormack and Maura Grossman. They also participated each year in their own track.

One of the core purposes of all of the Tracks is to demonstrate the robustness of core retrieval technology. Moreover, one of the primary goals of TREC is:

[T]o speed the transfer of technology from research labs into commercial products by demonstrating substantial improvements in retrieval methodologies on real-world problems.

Our participation in TREC in 2015 and 2016 has demonstrated substantial improvements in retrieval methodologies. That is what we set out to do. That is the whole point of the collaboration between the Department of Commerce and Department of Defense to establish TREC.

clinton_emailThe e-Discovery Team has a commercial interest in participation in TREC, not a defense or police interest. Although from what we saw with the FBI’s struggles to search email last year, the federal government needs help. We were very unimpressed by the FBI’s prolonged efforts to review the Clinton email collection. I was one of the few e-discovery lawyers to correctly call the whole Clinton email server “scandal” a political tempest in a teapot. I still do and I am still outraged by how her email review was handled by the FBI, especially with the last-minute “revelations.”

prism_nsaThe executive agencies of the federal government have been conspicuously absent from TREC. They seem incapable of effective search, which may well be a good thing. Still, we have to believe that the NSA and other defense agencies are able to do a far better job at large-scale search than the FBI. Consider their ongoing large-scale metadata and text interception efforts, including the once Top Secret PRISM operation. Maybe it is a good thing the NSA doe not share it abilities with the FBI, especially these days. Who knows? We certainly will not.

Mr_EDRThe e-Discovery Team’s commercial interest is to transfer Predictive Coding technology from our research labs into commercial products, namely transfer our Predictive Coding 4.0 Method using KrolL Discovery EDR software to commercial products. In our case at the present time “commercial products” means our search methods, time and consultations. But who knows, it may be reduced to a robot product someday like our Mr. EDR.

The e-Discovery Team method can be used on other document review platforms as well, not just Kroll’s, but only if they have strong active machine learning features. Active machine learning is what everyone at TREC was testing, although we appear to have been the only participant to focus on a particular method of operation. And we were the only team led by a practicing attorney, not an academic or software company. (Catalyst also fielded a team in 2015 and 2106 headed by Information Science Ph.D., Jeremy Pickens.)

Olympics-finish-line-Usain-Bolt-winsThe e-Discovery Team wanted to test the hybrid multimodal software methods we use in legal search to demonstrate substantial improvements in retrieval methodologies on real-world problems. We have now done so twice; participating in both the 2015 and 2016 Total Recall Tracks. The results in 2016 were even better than 2015. We obtained remarkable results in document review speed, recall and precision; although, as we admit, the search challenges presented at TREC 2016 were easier than most projects we see in legal discovery. Still, to use the quaint language of TREC, we have demonstrated the robustness of our methods and software.

These demonstrations, and all of the reporting and analysis involved, have taken hundreds of hours of our time, but there was no other venue around to test our retrieval methodologies on real-world problems. The demonstrations are now over. We have proven our case. Our standard Predictive Coding method has been tested and its effectiveness demonstrated. No one else has tested and proven their predictive coding methods as we have done. We have proven that our hybrid multimodal method of AI-Enhanced document review is the gold standard. We will continue to make improvements in our method and software, but we are done with participation in federal government programs to prove our standard, even one run by the National Institute of Standards and Technology.

predictive_coding_4-0_web

To prove our point that we have now demonstrated substantial improvements in retrieval methodologies, we quote below Section 5.1 of our official TREC report, but we urge you to read the whole thing. It is 164 pages. This section of our report covers our primary research question only. We investigated three additional research questions not included below.

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Section 5.1 First and Primary Research Question

What Recall, Precision and Effort levels will the e-Discovery Team attain in TREC test conditions over all thirty-four topics using the Team’s Predictive Coding 4.0 hybrid multimodal search methods and Kroll Ontrack’s software, eDiscovery.com Review (EDR).

Again, as in the 2015 Total Recall Track, the Team attained very good results with high levels of Recall and Precision in all topics, including perfect or near perfect results in several topics using the corrected gold standard. The Team did so even though it only used five of the eight steps in its usual methodology, intentionally severely constrained the amount of human effort expended on each topic and worked on a dataset stripped of metadata. The Team’s enthusiasm for the record-setting results, which were significantly better than its 2015 effort, is tempered by the fact that the search challenges presented in most of the topics in 2016 were not difficult and the TREC relevance judgments had to be corrected in most topics.  …

This next chart uses the corrected standard. It is the primary reference chart we use to measure our results. Unfortunately, it is not possible to make any comparisons with BMI standards because we do not know the order in which the BMI documents were submitted.

trec-16_revised-all-results

The average results obtained across all thirty-four topics at the time of reasonable call using the corrected standard are shown below in bold. The average scores using the uncorrected standard are shown for comparison in parentheses.

  • 88.17% Recall (75.46%)
  • 64.94% Precision (57.12%)
  • 69.15% F1 (57.69%)
  • 124 Docs Reviewed Effort (124)

At the time of reasonable call the Team had recall scores greater than 90% in twenty-two of the thirty-four topics and greater than 80% in five more topics. Recall of greater than 95% was attained in fourteen topics. These Recall scores under the corrected standard are shown in the below chart. The results are far better than we anticipated, including six topics with total recall – 100%, and two topics with both total recall and perfect precision, topic 417 Movie Gallery and topic 434 Bacardi Trademark.

recall-scores-amended-2016

At the time of reasonable call the Team had precision scores greater than 90% in thirteen of the thirty-four topics and greater than 75% in three more topics. Precision of greater than 95% was attained in nine topics. These Precision scores under the corrected standard are shown in the below chart. Again, the results were, in our experience, incredibly good, including three topics with perfect precision at the time of the reasonable call.

precision-scores-amended-2016

At the time of reasonable call the Team had F1 scores greater than 90% in twelve of the thirty-four topics and greater than 75% in two more. F1 of greater than 90% was attained in eight topics. These F1 scores under the corrected standard are shown in the below chart. Note there were two topics with a perfect score, Movie Gallery (100%) and Bacardi Trademark (100%) and three more that were near perfect: Felon Disenfranchisement (98.5%), James V. Crosby (97.57%), and Elian Gonzalez (97.1%).

f1-scores-amended_2016

We were lucky to attain two perfect scores in 2016 (we attained one in 2015), in topic 417 Movie Gallery and topic 434 Bacardi Trademark. The perfect score of 100% F1 was obtained in topic 417 by locating all 5,945 documents relevant under the corrected standard after reviewing only 66 documents. This topic was filled with form letters and was a fairly simple search.

The perfect score of 100% F1 was obtained in topic 434 Bacardi Trademark by locating all 38 documents relevant under the corrected standard after reviewing only 83 documents. This topic had some legal issues involved that required analysis, but the reviewing attorney, Ralph Losey, is an SME in trademark law so this did not pose any problems. The issues were easy and not critical to understand relevance. This was a simple search involving distinct language and players. All but one of the 38 relevant documents were found by tested, refined keyword search. One additional relevant document was found by a similarity search. Predictive coding searches were run after the keywords searches and nothing new was uncovered. Here machine learning merely performed a quality assurance role to verify that all relevant documents had indeed been found.

The Team proved once again, as it did in 2015, that perfect recall and perfect precision is possible, albeit rare, using the Team’s methods and fairly simple search projects.

The Team’s top ten projects attained remarkably high scores with an average Recall of 95.66%, average Precision of 97.28% and average F-Measure: 96.42%. The top ten are shown in the chart below.

top-10_results

In addition to Recall, Precision and F1, the Team per TREC requirements also measured the effort involved in each topic search. We measured effort by the number of documents that were actually human-reviewed prior to submission and coded relevant or irrelevant. We also measured effort by the total human time expended for each topic. Overall, the Team human-reviewed only 6,957 documents to find all the 34,723 relevant documents within the overall corpus of 9,863,366 documents. The total time spent by the Team to review the 6,957 documents, and do all the search and analysis and other work using our Hybrid Multimodal Predictive Coding 4.0 method, was 234.25 hours. reviewed_data_pie_chart_2016

It is typical in legal search to try to measure the efficiency of a document review by the number of documents classified by an attorney in an hour. For instance, a typical contract review attorney can read and classify an average of 50 documents per hour. The Team classified 9,863,366 documents by review of 6,957 documents taking a total time of 234.25 hours. The Team’s overall review rate for the entire corpus was thus 42,106 files per hour (9,863,366/234.25).

In legal search it is also typical, indeed mandatory, to measure the costs of review and bill clients accordingly. If we here assume a high attorney hourly rate of $500 per hour, then the total cost of the review of all 34 Topics would be $117,125. That is a cost of just over $0.01 per document. In a traditional legal review, where a lawyer reviews one document at a time, the cost would be far higher. Even if you assume a low attorney rate of $50 per hour, and review speed of 50 files per hour, the total cost to review every document for every issue would be $9,863,366. That is a cost of $1.00 per document, which is actually low by legal search standards.13

Analysis of project duration is also very important in legal search. Instead of the 234.25 hours expended by our Team using Predictive Coding 4.0, traditional linear review would have taken 197,267 hours (9,863,366/50). In other words, the review of thirty-four projects, which we did in our part-time after work in one Summer, would have taken a team of two lawyers using traditional methods, 8 hours a day, every day, over 33 years! These kinds of comparisons are common in Legal Search.

Detailed descriptions of the searches run in all thirty-four topics are included in the Appendix.

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We also reproduce below Section 1.0, Summary of Team Efforts, from our 2016 TREC Report. For more information on what we learned in the 2016 TREC see alsoComplete Description in 30,114 Words and 10 Videos of the e-Discovery Team’s “Predictive Coding 4.0” Method of Electronic Document ReviewNine new insights that we learned in the 2016 research are summarized by the below diagram more specifically described in the article.

predictive_coding_six-three-2

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Excerpt From Team’s 2016 Report

1.1 Summary of Team’s Efforts. The e-Discovery Team’s 2016 Total Recall Track Athome project started June 3, 2016, and concluded on August 31, 2016. Using a single expert reviewer in each topic the Team classified 9,863,366 documents in thirty-four review projects.

The topics searched in 2016 and their issue names are shown in the chart below. Also included are the first names of the e-Discovery Team member who did the review for that topic, the total time spent by that reviewer and the number of documents manually reviewed to find all of the relevant documents in that topic. The total time of all reviewers on all projects was 234.25 hours. All relevant documents, totaling 34,723 by Team count, were found by manual review of 6,957 documents. The thirteen topics in red were considered mandatory by TREC and the remaining twenty-one were optional. The e-Discovery Team did all topics.

trec-2016-topics

They were all one-person, solo efforts, although there was coordination and communications between Team members on the Subject Matter Expert (SME) type issues encountered. This pertained to questions of true relevance and errors found in the gold standard for many of these topics. A detailed description of the search for each topic is contained in the Appendix.

In each topic the assigned Team attorney personally read and evaluated for true relevance every email that TREC returned as a relevant document, and every email that TREC unexpectedly returned as Irrelevant. Some of these were read and studied multiple times before we made our final calls on true relevance, determinations that took into consideration and gave some deference to the TREC assessor adjudications, but were not bound by them. Many other emails that the Team members considered irrelevant, and TREC agreed, were also personally reviewed as part of their search efforts. As mentioned, there was sometimes consultations and discussion between Team members as to the unexpected TREC opinions on relevance.

This contrasts sharply with participants in the Sandbox division. They never make any effort to determine where their software made errors in predicting relevance, or for any other reasons. They accept as a matter of faith the correctness of all TREC’s prior assessment of relevance. To these participants, who were all academic institutions, the ground truth itself as to relevance or not, was of no relevance. Apparently, that did not matter to their research.

All thirty-four topics presented search challenges to the Team that were easier, some far easier, than the Team typically face as attorneys leading legal document review projects. (If the Bush email had not been altered by omission of metadata, the searches would have been even easier.) The details of the searches performed in each of the thirty-four topics are included in the Appendix. The search challenges presented by these topics were roughly equivalent to the most simplistic challenges that the e-Discovery Team might face in projects involving relatively simple legal disputes. A few of the search topics in 2016 included quasi legal issues, more than were found in the 2015 Total Recall Track. This is a revision that the Team requested and appreciated because it allowed some, albeit very limited testing of legal judgment and analysis in determination of true relevance in these topics. In legal search relevancy, legal analysis skills are obviously very important. In most of the 2016 Total Recall topics, however, no special legal training or analysis was required for a determination of true relevance.

At Home participants were asked to track and report their manual efforts. The e-Discovery Team did this by recording the number of documents that were human reviewed and classified prior to submission. More were reviewed after submission as part of the Team’s TREC relevance checking. Virtually all documents human reviewed were also classified, although all documents classified were not used for active training of the software classifier. The Team also tracked effort by number of attorney hours worked as is traditional in legal services. Although the amount of time varied somewhat by topic, the average time spent per topic was only 6.89 hours. The average review and classification speed for each project was 42,106 files per hour (9,863,366/234.25).

Again, for the full picture and complete details of our work please see the complete 164 page report to TREC of the e-Discovery Team’s Participation in the 2016 Total Recall Track.

 

 

 

 


Lawyers’ Job Security in a Near Future World of AI, the Law’s “Reasonable Man Myth” and “Bagley Two” – Part Two

January 22, 2017

This is the second and concluding section to the two-part blog, Lawyers’ Job Security in a Near Future World of AI, the Law’s “Reasonable Man Myth” and “Bagley Two.” Click here to read Part One.

Robot_handshake

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Next consider Judge Haight’s closing words to the opinion dated December 22, 2016, Ruling On Plaintiff’s Motion To Compel; Bagely v. Yale, Civil Action No. 3:13-CV-1890 (CSH):

However, requiring this additional production, or a further deposition in case of need, is in keeping with a governing objective of the Federal Rules of Civil Procedure: “By requiring disclosure of all relevant information, the discovery rules allow ultimate resolution of disputed issues to be based on full and accurate understanding of true facts.” 6 Moore’s Federal Practice § 26.02 (Matthew Bender 3d ed.). 6

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6 While Yale may not welcome the measurement of its obligations in the case at bar by these principles, it is worth recalling that the treatise’s principal initial author, James Wm. Moore, was a towering figure on the faculty of Yale Law School. In his preface to the first edition (1938), Professor Moore referred to his effort “at all times to accord to the Rules the interpretation which is most likely to attain the general objective of the new practice: the settlement of litigation on the merits.” That is the interpretation this Ruling attempts to adopt.

william_moore_prof_yale

Prof. Moore (1905-1994)

Poor Yale. Moore’s Federal Practice is one of the most cited treatises in the law. James W. Moore was the author of the 34-volume Moore’s Federal Practice (2d ed., 1948) and the three-volume Moore’s Manual: Federal Practice & Procedure (1962). He was also the Sterling Professor Emeritus of Law at Yale University, where he taught for 37 years. Who else but Yale can have anything in Moore’s thirty-four volume treatise held against them personally? Seems kind of funny, but I am sure Yale’s attorneys were not laughing.

Getting back to the case and Judge Haight’s decision. Aside from showing the malleability and limits of reason, Bagley Two provides some important new precedent for e-discovery, namely his rulings on privilege and the discoverability of a party’s preservation efforts. Judge Haight starts by repeating what is now established law, that a party’s preservation efforts are not satisfied by mere issuance of a notice, that a whole process is involved and the process must be reasonable. He then goes on to provide a pretty good list of the facts and circumstances that should be considered to determine reasonability.

[A] party’s issuance of a litigation hold notice does not put an end to the party’s obligation to preserve evidence; it is, rather, the first in a series of related steps necessary to ensure that preservation. As Magistrate Judge Francis aptly observed in Mastr Adjustable Rate Mortgages Trust 2006 v. UBS Real Estate Securities Inc., 295 F.R.D. 77, 85 (S.D.N.Y. 2013): “A litigation hold is not, alone, sufficient; instead compliance must be monitored.”

In spoliation cases involving litigation hold notices, one can discern from Second Circuit and district court opinions a number of decisive questions:

1. When did a party’s duty to preserve evidence arise?
2. Did the party issue a litigation hold notice in order to preserve evidence?
3. When did the party issue a litigation hold notice, in relation to the date its duty to preserve the evidence arose?
4. What did the litigation hold notice say?
5. What did recipients of the litigation hold notice do or say, in response to or as result of, the notice?
6. After receiving recipients’ responses to the litigation hold notice, what further action, if any, did the party giving the notice take to preserve the evidence?

Questions 2 through 6 are entirely fact-specific to a given case. Question 1 is a mixed question of law and fact, whose legal element the Second Circuit defined in Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001): “The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.”

In the case at bar, I am unable to accept Yale’s argument that the litigation hold notices it issued about Bagley and the recipients’ responses to the notices are immune from discovery because (in the absence of proof that spoliation had in fact occurred) such documents “are subject to the attorney-client and to work product privileges,” Defendants’ Brief [Doc. 192], at 3. That contention is something of a stretch. … . Assuming that all of Clune’s litigation hold notices were sent to employees of Yale, Clune was in effect communicating with his client. However, the predominant purpose of that communication was to give recipients forceful instructions about what they must do, rather than advice about what they might do. 3

I like the list of six key facts to consider to weigh the reasonability of preservation efforts, especially the last one. But my primary point here is the malleability of reason in classifying the notice as unprotected. A letter from in-house counsel telling employees that the law requires them to preserve is not advice entitled to privilege protection? It’s predominant purpose was instead unprotected instructions? The language of the litigation hold notices was earlier quoted in the opinion. It’s language included the following:

[A]ll members of the Yale faculty and staff who have information in their possession or control relating or referring in any way to Professor Bagley, her employment and teaching at SOM, or the circumstances relating to the non-renewal of her faculty appointment (collectively “this Matter”) have a legal obligation to preserve that information. The law imposes this obligation to prevent the loss of potential evidence during litigation. You must preserve and retain, and not alter, delete, remove, discard or destroy, directly or indirectly, any information concerning this Matter. Failure to preserve information could seriously undermine Yale’s legal position and lead to legal sanctions.

The lawyer’s letter tells employees that they “have a legal obligation to preserve,” and the legal consequences if they do not. Yet this letter is not advice because the predominant purpose is just an unprotected instruction? That is the holding.

mental_impressionsJudge Haight gets rid of work product protection too.

As for the work product doctrine, it “is not actually a privilege, but rather a qualified immunity from discovery,” codified in Fed. R. Civ. P. Rule 26(b)(3), whose purpose “is to protect an attorney’s mental processes so that the attorney can analyze and prepare for the client’s case without interference from an opponent.” 6 Moore’s Federal Practice, § 26.70[1] (Matthew Bender 3d ed.). 4 That purpose is not implicated by the present exercise.

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4 Fed. R. Civ. P. 26 (b)(3) of Civil Procedure protects from disclosure those materials which reveal “the mental impressions, conclusions, opinions, or legal theories of a party’s attorney.” See also In re Steinhardt Partners, L.P., 9 F.3d 230, 234 (2d Cir. 1993) (“At its core, the work product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case.”) (quoting United States v. Nobles, 422 U.S. 225, 238 (1975)) (emphasis added).

I do not agree with Judge Haight on this aspect of his ruling. I think both work product and attorney client apply to these particular notices and his “reasoning”on this issue is wrong. I do, however, agree with his final ruling requiring production. I think the protections had been waived by the circumstances and actions of defense counsel, which, by the way, they were correct in doing. I think the waiver on their part was necessary. Judge Haight also mentioned waiver, but as dicta alternative grounds in footnote three:

3 The Court also notes that to the extent that Yale’s litigation hold notices included the text of the exemplar provided to Plaintiff as “document preservation notices,” that text has already been revealed publicly in this case, so that secrecy or privilege relating to that language was destroyed or waived. See Doc. 191-1, Ex. F.

triggerJudge Haight then looks at the question of when Yale’s duty to preserve commenced. Recall Yale kept adding custodians in eight stages. The first were pre-litigation notices. They were made, I note, after Yale’s lawyer mental processes told him that litigation was reasonably likely. The last were made after suit was filed, again based on the lawyer’s mental processes causing him to believe that these additional witnesses might have relevant evidence. The mental processes of Plaintiff’s attorneys led them to believe that all of the notices, including the pre-litigation notices, were sent too late and thus spoliation was likely. Here is Judge Haight’s analysis of the trigger issue:

When, during the course of this melancholy chain of events, should Yale have known that evidence pertinent to Bagley’s reappointment might be relevant to future litigation? That is a crucial question in spoliation analysis. A state of reasonable anticipation clearly antedates the actual filing of a complaint; in Fujitsu, 247 F.3d at 436, the Second Circuit was careful to couple actual present and possible future litigation as catalysts of equal strength for the preservation of evidence.

Bagley has not yet formally moved for spoliation sanctions, and so the question is not yet before me for decision, but some preliminary, non-binding observations may be made. The record previously made in the case shows that Bagley’s personal distress and institutional disapproval and distrust grew throughout the winter and spring of 2012 (the last year of her five-year appointment), so that when on May 24, 2012, Dean Snyder told Bagley that she would not be reappointed, it would not be irrational to suppose that Bagley might soon transform herself from disheartened academic to vengeful litigant. In fact, Bagley filed an internal discrimination complaint against Yale during the following month of June 2012 (which had the effect of bringing Provost Salovey out of the wings and onto the stage).

Predictable_IrrationalNote the Judge’s use of the phrase not be irrational to suppose. What is the impact of hindsight bias on this supposedly objective, rational analysis? Bagley’s later actions made it obvious that she would sue. She did sue. The law suit has been very contentious. But was it really all that obvious back in 2012 that Yale would end up in the federal courthouse? I personally doubt it, but, admit it is a close judgment call. We lawyers say that a lot. All that phrase really means is that reason is not objective. It is in the eye of the beholder.

Judge Haight then wraps up his analysis in Bagley Two.

What happened in this case is that Yale identified 65 individuals who might have evidence relevant to Bagley’s denial of reappointment, and issued them litigation hold notices in eight separate batches, a process that took a considerable amount of time. The first nine notices were sent nine months after Snyder told Bagley she would not be reappointed. The last was sent eight months after Bagley filed this action. To characterize the pace of this notification process as culpable or even negligent would be premature on the present record, but it is fair to say that it was leisurely, to an extent making it impossible to dismiss as frivolous Bagley’s suggestion that she might move for a spoliation sanction. The six questions outlined supra arise in this case, and the factors pertinent to resolving them include an unreasonable delay in issuing the notices and a subsequent failure to implement and monitor the recipients’ responses. Judge Sweet said in Stimson that the Second Circuit has left open “the question of whether a sufficiently indefensible failure to issue a litigation hold could justify an adverse inference on its own,” and an additional factor would be “the failure to properly implement the litigation hold even after it was issued.” 2016 WL 54684, at *6. These are legitimate questions in the case at bar. Bagley is entitled to discovery with respect to them. 5 (footnote citations omitted)

I certainly agree with Judge Haight on all of those points and law. Those factual circumstances do justify the modest amount of discovery requested by the plaintiff in this motion.

gavelNow we get to the actual Order on the pending motion to compel:

Therefore I conclude that in the circumstances of this case, Bagley’s “Motion to Compel” [Doc. 190] is GRANTED. Bagley is entitled to examine the litigation hold notices issued by Yale, and the responsive survey forms that notice recipients returned to Yale. These documents bear directly upon the questions courts identify as dispositive in spoliation cases. Bagley is entitled to discovery in these areas, in order to discern the merit or lack of merit of a formal claim for spoliation claim. To the extent that Yale objects to production of these documents on the grounds of privilege or the work product doctrine, the objections are OVERRULED.

For the same reasons, Bagley is also entitled to an affidavit from a Yale officer or employee (not a notice recipient or recipients) which describes what non-ESI documents Yale received from notice recipients and what was done with them. On a spoliation claim, Bagley will ultimately bear the burden of showing that pertinent evidence was destroyed or rendered unavailable. This discovery may cast light on that disputed issue. Yale may prefer not to have to produce that information; Yale’s counsel miss no opportunity to remind the Court how much discovery effort the case has previously required.

Judge Haight then ended his opinion with the previously quoted zinger regarding Yale’s famous law Professor Moore. This zinger and comments about Yale’s leisurely efforts and Yale counsel’s missing no opportunities to remind the court tell a story of their own. It shows the emotional undertone. So too does his earlier noted comment about “spoliation” being a cardinal litigation vice, well known to practicing attorneys and judges, but “perhaps unfamiliar” to academics. I suspect this goes beyond humor.

Artificial Intelligence and the Future of Employment

robot_whispererI am sure legal reason will improve in the future and become less subjective, less subject to hidden irrationalities and prejudices. By using artificial intelligence our legal doctrines and decision making can be improved, but only if the human judges remain in charge. The same comment goes for all attorneys. In fact, it applies to all current employment.

The doom and gloom futurists disagree. They think AI will replace humans at their jobs, not empower them. They envision a future of cold automation, not man-machine augmentation. They predict wide-spread unemployment with a loss of half of our current employment. An University of Oxford study predicted that almost half of all U.S. jobs could be lost to automation in the next twenty years. Even the influential World Economic Forum predicts predicts that Five Million jobs could be lost by 2020. Five Million Jobs by 2020: the Real Challenge of the Fourth Industrial Revolution. Also seeThe Future of Jobs: Employment, Skills and Workforce Strategy for the Fourth Industrial Revolution (World Economic Forum, Jan. 2016).

A contrary view “augmentation” oriented group predicts the opposite, that at least as many new jobs will be created as lost. This is a subject of hot debate. See EgArtificial intelligence will save jobs, not destroy them (World Economic Forum, 1/19/17). Readers know I am in the half-full camp.

James Bessen: Law Prophet of the Future of Employment

james_bessonMany are like me and have an overall positive outlook, including James Bessen, an economist  and Lecturer in Law at the Boston University School of Law. Jim Bessen, who was a good hacker with an entrepreneurial background (he created the first WYSIWYG desktop publishing software), has researched the history of computer use and employment since 1980. Jim’s research has shown that for those who can keep up with technology, there will be new jobs to replace the ones lost. Bessen, How Computer Automation Affects Occupations: Technology, Jobs & Economics, Boston University School of Law Law & Economics Working Paper No. 15-49 (1/16/16). He also found that wages in occupations that use computers grow faster, not slower:

[B]ecause higher wage occupations use computers more, computer use tends to increase well-paid jobs and to decrease low-paid jobs. Generally, computer use is associated with a substantial reallocation of jobs, requiring workers to learn new skills to shift occupations.

Also see the article in The Atlantic magazine by Bessen, The Automation Paradox: When computers start doing the work of people, the need for people often increases, (The Atlantic, 1/19, 2016) where he said:

…workers will have greater employment opportunities if their occupation undergoes some degree of computer automation. As long as they can learn to use the new tools, automation will be their friend.

This is certainly consistent with what I have seen in the legal profession since I started practice in 1980.

james_bessenJames Bessen has also written a book on this, Learning by Doing: The Real Connection Between Innovation, Wages, and Wealth. (Yale U. Press 2015). In this book, Bessen, in his words:

… looks at both economic history and the current economy to understand how new technology affects ordinary workers and how society can best meet the challenges it poses.

He notes that major new technologies always require new human work skills and knowledge, and that today, as before, they are slow and difficult to develop. He also makes the observation, which is again consistent with my own experience as a tech-lawyer, that relevant technical knowledge “develops slowly because it is learned through experience, not in the classroom.” In his analysis that is because the new knowledge is not yet standardized. I agree. This is one reason my work has been focused on the standardization of the use of active machine learning in the search for electronic evidence; see for example Predictive Coding 4.0 and my experiments at the TREC conference on predictive coding methods sponsored by the National Institute of Standards and Technology. Also see: Electronic Discovery Best Practices. In spite of my efforts on standards and best practices for e-discovery, we are still in the early, rapidly changing, non-standardized stage of new technology. Bessen argues that employer policies and government policies should encourage such on-the-job learning and perfection of new methods.

Jim Bessen’s findings are starting to be discussed by many who are now concerned with the impact of AI on employment. See for instance, Andrea Willige’s article in the World Economic Forum concerning Davos for 2017Two reasons computers won’t destroy all the jobs (“jobs don’t disappear, they simply move up the skills and wage ladder. For workers to move up the ranks, they must acquire the necessary skillset.”).

Standardization v. On-the-Job Training

Moving on up requires new employment skills. It requires workers who can step-in, step-up, step-aside, step-narrowly, or step-forward. Only Humans Need Apply; Dean Gonsowski, A Clear View or a Short Distance? AI and the Legal Industry, and, Gonsowski, A Changing World: Ralph Losey on “Stepping In” for e-Discovery, (Relativity Blog) (Interview with references to the the 5-steps described in Only Humans Need Apply). Unless and until standardization emerges, and this is taught in a classroom, the new skills will be acquired by on-the-job learning only, sometimes with experienced trainers, but more often self-taught by trial and error.

Borg_Ralph_headI have been working on creating the perfect, standard method for electronic document review using predictive coding since Da Silva Moore. I have used trial and error and on-the-job learning, buttressed by spending a month a year over the last five years on scientific research and experiments with my own team (remember my Borg experiments and videos?) and with TREC, EDI and Kroll Ontrack. Borg Challenge: Report of my experimental review of 699,082 Enron documents using a semi-automated monomodal methodology (a five-part written and video series comparing two different kinds of predictive coding search methods); Predictive Coding Narrative: Searching for Relevance in the Ashes of EnronEDI-Oracle Study: Humans Are Still Essential in E-Discovery (LTN Nov., 2013); e-Discovery Team at TREC 2015 Total Recall Track, Final ReportTREC 2016 Total Recall Track NOTEBOOK.

predictive_coding_4-0_simpleAfter years we have finally perfected and standardized a highly effective method for document review using predictive coding. We call it Predictive Coding 4.0. This method is complete, well-tested, proven and standardized for my team, but not yet accepted by the industry. Unfortunately, industry acceptance of one lawyer’s method is very difficult (impossible?) in the highly competitive, still young and emerging field of electronic document review. I create a standard because I have to in my work, not because I unrealistically expect the industry to adopt it. The industry is still too young for that. I will continue with my on-the-job training, content with that, just as Bessen, Davenport and Kirby observe is the norm for all new technologies. Someday a standard will be generally accepted and taught in classrooms, but we are far from it.

Conclusion

There is more going on in Bagley Two than objective reason, even assuming such a thing exists. Experienced attorneys can easily read between the lines. Reasoned analysis is just the tip of the iceberg, or top of the pyramid, as I envisioned in the new model for Holistic Law outlined in my prior article, Scientific Proof.

There is far more to Senior District Judge Charles S. Haight, Jr., than his ability to be logical and apply reason to the facts. He is not just a “thinking machine.” He has wisdom from decades on the bench. He is perceptive, has feelings and emotions, good intuitions and, we can see, a sense of humor. The same holds true for most judges and lawyers, perhaps even law professors. We are all human and have many other capacities beyond what robots can be trained to do.

Jason_Ralph_RobotReason is just one of the things that we humans do, and, as the work of Professor Ariely has shown, it is typically full of holes and clouded by hidden bias. We need the help of computers to get reason done right, to augment our logic and reasoning skills. Do not try to compete with, nor exclude robots from tasks involving reason. You will ultimately lose that battle. Instead, work with the robots. Invite them in, but remain in control of the processes; use the AI’s abilities to enhance and enlarge your own.

I am sure legal reason will improve in the future and become less subjective. This will happen when more lawyers Step-In as discussed in Davenport and Kirby, Only Humans Need Apply and Dean Gonsowski, A Clear View or a Short Distance? AI and the Legal Industry, and A Changing World: Ralph Losey on “Stepping In” for e-Discovery

alex_hafezMany of us have stepped-in, to use Davenport and Kirby’s language, to manage the use of TAR and AI in document review, not just me. Consider, for instance attorney Alexander Hafez, currently a “Solutions Engineer” for FTI. He was the only other attorney featured in Only Humans Need Apply. Alex bootstrapped his way from minimum wage contract document reviewer, to his current large vendor consultant “step-in” job, by, in the book’s words, “educational bricolage” composed of on-the-job learning and “a specialized course of two and some autodidactic reading.” Id. pg. 144. There are thousands of lawyers in e-Discovery doing quite well in today’s economy. The use of AI and other advanced technologies is now starting to appear in other areas of the law too, including contract review, analysis and construction. See eg. Kira Systems, Inc.

Great-Depression_LitigatorsAs the other areas of the Law become as enhanced and augmented as e-discovery, we will see new jobs open up for the steppers. Old mechanistic law jobs will be replaced. That is for sure. There will be jobs lost in the legal economy. But if Davenport, Kirby and Bessen are correct, and I for one think they are, new, better paying jobs will be created to replace them. Still, for most luddite lawyers, young and old, who are unable to adapt and learn new technologies, the impact of AI on the Law could be devastating. 

Only the tech-savvy will be able to move up the skill and wage ladder by stepping-in to make the technology work right. I attained the necessary skill set to do this with legal technology by teaching myself, by “hacking around” with computers. Yes, it was difficult, but I enjoyed this kind of learning. My story of on the job self-learning is very common. Thus the name of Bessen’s book, Learning by DoingOthers might do better in a more structured learning environment, such as a school, but for the fact there currently is none for this sort of thing, at least in the Law. It falls between the cracks of law school and computer science. For now the self-motivated, self-learners will continue to lead the way.

brad_smith_microsoftNot only do we need to improve our thinking with machines, we need to contribute our other talents and efforts. We need to engage and expand upon the qualities of our job that are most satisfying to us, that meet our human nature. This uniquely human work requires what is sometimes called “soft skills.” This primarily includes the ability for good interpersonal communication, but also such things as the ability to work collaboratively, to adapt to a new set of demands, and to solve problems on the fly. Legal counseling is a prime example according to the general counsel of Microsoft, Brad Smith. Microsoft’s Top Lawyer Toasts Legal Secretaries (Bloomberg Law, 1/18/17). The top lawyer, once CEO of Microsoft, also opined:

Individuals need to learn new skills to keep pace, and this isn’t always easy.  Over the next decade this could become more daunting still, as technology continues to change rapidly.  There is a broadening need for new technical skills and stronger soft skills.  The ability – and opportunity – to continue learning has itself become more important.

Brad Smith, Constructing a Future that Enables all Americans to Succeed, (Dept. of Commerce guest blog, 11/30/16).

The Wikipedia article on “soft skills” lists ten basic skills as compiled by Heckman and Kautz, Hard Evidence on Soft Skills, Labour Econ. 2012 Aug 1; 19(4): 451–464.

  • Communication – oral, speaking capability, written, presenting, listening.
  • Courtesy – manners, etiquette, business etiquette, gracious, says please and thank you, respectful.
  • Flexibility – adaptability, willing to change, lifelong learner, accepts new things, adjusts, teachable.
  • Integrity – honest, ethical, high morals, has personal values, does what’s right.
  • Interpersonal skills – nice, personable, sense of humor, friendly, nurturing, empathetic, has self-control, patient, sociability, warmth, social skills.
  • Positive attitude – optimistic, enthusiastic, encouraging, happy, confident.
  • Professionalism – businesslike, well-dressed, appearance, poised.
  • Responsibility – accountable, reliable, gets the job done, resourceful, self-disciplined, wants to do well, conscientious, common sense.
  • Teamwork – cooperative, gets along with others, agreeable, supportive, helpful, collaborative.
  • Work ethic – hard working, willing to work, loyal, initiative, self-motivated, on time, good attendance.

soft-skills_cartoon

As Brad Smith correctly observed, the skills and tasks needed to keep pace with technology include these kinds of soft skills as well as new technological know-how, things like the best methods to implement new predictive coding software. The tasks, both soft and technical, are generally not overly repetitive and typically require some creativity, imagination, flexibility and inventiveness and, in my view, the initiative to exceed original parameters.

cute_robotA concerned lawyer with real empathy who counsels fellow humans is not likely to be replaced anytime soon by a robot, no matter how cute. There is no substitute for caring, human relationships, for comforting warmth, wit and wisdom. The calm, knowledgeable, confident presence of a lawyer who has been through a problem many times before, and assures you that they can help, is priceless. It brings peace of mind, relaxation and trust far beyond the abilities of any machine.

Stepping-in is one solution for those of us who like working with new technology, but for the rest of humanity, soft-skills are now even more important. Even us tech-types need to learn and improve upon our soft skills. The team approach to e-discovery, which is the basic premise of this e-Discovery Team blog, does not work well without them.

ralph_17_pallate_knife_2Brad Smith’s comment on the need for continued learning is key for everyone who wants to keep working in the future. It is the same thing that Bessen, Davenport and Kirby say. Continued learning is one reason I keep writing. It helps me to learn and may help others to learn too, as part of their “autodidactic reading” and “educational bricolage.” (How else would I learn those words?) According to Bessen’s, Davenport and Kirby’s research most of the key skills needed to keep pace can only be learned on-the-job and are usually self-taught. That is one reason online education is so important. It makes it easier than ever for otherwise isolated people to have access to specialized knowledge and trainers.


Lawyers’ Job Security in a Near Future World of AI, the Law’s “Reasonable Man Myth” and “Bagley Two” – Part One

January 15, 2017

bad-robotDoes the inevitable triumph of AI robots over human reason and logic mean that the legal profession is doomed? Will Watson be the next generation’s lawyer of choice? I do no think so and have written many articles on why, including two last year: Scientific Proof of Law’s Overreliance On Reason: The “Reasonable Man” is Dead and the Holistic Lawyer is Born; and The Law’s “Reasonable Man,” Judge Haight, Love, Truth, Justice, “Go Fish” and Why the Legal Profession Is Not Doomed to be Replaced by Robots. In the Reasonable Man article I discussed how reasonability is the basis of the law, but that it is not objective. It depends on many subjective factors, on psychology. In the Scientific Proof article I continued the argument and argued:

The Law’s Reasonable Man is a fiction. He or she does not exist. Never has, never will. All humans, including us lawyers, are much more complex than that. We need to recognize this. We need to replace the Law’s reliance on reason alone with a more realistic multidimensional holistic approach.

Scientific Proof Article

brain_gears_NOTo help make my argument in the Scientific Proof article I relied on the analysis of Thomas H. Davenport and Julia Kirby in Only Humans Need Apply: Winners and Losers in the Age of Smart Machines (Harper 2016) and on the scientific work of Dan Ariely, a Professor of Psychology and Behavioral Economics at Duke University.

I cite to Only Humans Need Apply: Winners and Losers in the Age of Smart Machines to support my thesis:

Although most lawyers in the profession do not know it yet, the non-reasoning aspects of the Law are its most important parts. The reasoning aspects of legal work can be augmented. That is certain. So will other aspects, like reading comprehension. But the other aspects of our work, the aspects that require more than mere reason, are what makes the Law a human profession. These job functions will survive the surge of AI.

If you want to remain a winner in future Law, grow these aspects. Only losers will hold fast to reason. Letting go of the grip of the Reasonable Man, by which many lawyers are now strangled, will make you a better lawyer and, at the same time, improve your job security.

Also see Dean Gonsowski, A Clear View or a Short Distance? AI and the Legal Industry; and, Gonsowski, A Changing World: Ralph Losey on “Stepping In” for e-Discovery, (Relativity Blog).

Professor Ariely has found from many experiments that We’re All Predictably Irrational. In my article, Scientific ProofI point my readers to his many easily accessible video talks on the subject. I consider the implication of Professor Ariely’s research on the law:

Our legal house needs a new and better foundation than reason. We must follow the physicists of a century ago. We must transcend Newtonian causality and embrace the more complex, more profound truth that science has revealed. The Reasonable Man is a myth that has outlived its usefulness. We need to accept the evidence, and move on. We need to develop new theories and propositions of law that confirm to the new facts at hand. Reason is just one part of who we are. There is much more to us then that: emotion, empathy, creativity, aesthetics, intuition, love, strength, courage, imagination, determination – to name just a few of our many qualities. These things are what make us uniquely human; they are what separate us from AI. Logic and reason may end up being the least of our abilities, although they are still qualities that I personally cherish. …

Davinci_whole_manSince human reason is now known to be so unreliable, and is only a contributing factor to our decisions, on what should we base our legal jurisprudence? I believe that the Reasonable Man, now that he is known to be an impossible dream, should be replaced by the Whole Man. Our jurisprudence should be based on the reality that we are not robots, not mere thinking machines. We have many other faculties and capabilities beyond just logic and reason. We are more than math. We are living beings. Reason is just one of our many abilities.

So I propose a new, holistic model for the law. It would still include reason, but add our other faculties. It would incorporate our total self, all human attributes. We would include more than logic and reason to judge whether behavior is acceptable or not, to consider whether a resolution of a dispute is fair or not. Equity would regain equal importance.

A new schemata for a holistic jurisprudence would thus include not just human logic, but also human emotions, our feelings of fairness, our intuitions of what is right and just, and multiple environmental and perceptual factors. I suggest a new model start simple and use a four-fold structure like this, and please note I keep Reason on top, as I still strongly believe in its importance to the Law.

4-levels-Holistic_Law_pyramid

My Scientific Proof article included a call to action, the response to which has been positive:

The legal profession needs to take action now to reduce our over-reliance on the Myth of the Reasonable Man. We should put the foundations of our legal system on something else, something more solid, more real than that. We need to put our house in order before it starts collapsing around us. That is the reasonable thing to do, but for that very reason we will not start to do it until we have better motivation than that. You cannot get people to act on reason alone, even lawyers. So let us engage the other more powerful motivators, including the emotions of fear and greed. For if we do not evolve our work to focus on far more than reason, then we will surely be replaced.

cyborg-lawyer

AI can think better and faster, and ultimately at a far lower cost. But can AI reassure a client? Can it tell what a client really wants and needs. Can AI think out of the box to come up with new, creative solutions. Can AI sense what is fair? Beyond application of the rules, can it attain the wisdom of justice. Does it know when rules should be bent and how far? Does it know, like any experienced judge knows, when rules should be broken entirely to attain a just result? Doubtful.

I go on to make some specific suggestions, just to start the dialogue, and then closed with the following:

We must move away from over-reliance on reason alone. Our enlightened self-interest in continued employment in the rapidly advancing world of AI demands this. So too does our quest to improve our system of justice, to keep it current with the rapid changes in society.

Where we must still rely on reason, we should at the same time realize its limitations. We should look for new technology based methods to impose more checks and balances on reason than we already have. We should create new systems that will detect and correct the inevitable errors in reason that all humans make – lawyers, judges and witnesses alike. Bias and prejudice must be overcome in all areas of life, but especially in the justice system.

Computers, especially AI, should be able to help with this and also make the whole process more efficient. We need to start focusing on this, to make it a priority. It demands more than talk and thinking. It demands action. We cannot just think our way out of a prison of thought. We need to use all of our faculties, especially our imagination, creativity, intuition, empathy and good faith.

Reasonable Man Article

Reasonable_man_cloudTo help make my argument in the earlier blog, The Law’s “Reasonable Man,” Judge Haight, Love, Truth, Justice, “Go Fish” and Why the Legal Profession Is Not Doomed to be Replaced by Robots, I quoted extensively from an Order Denying Defendant’s Motion for Protective Order. The order arose out of a routine employment discrimination case. Bagely v. Yale, Civil Action No. 3:13-CV-1890 (CSH) (Doc. 108) (order dated April 27, 2015). The Order examined the “reasonability” of ESI accessibility under Rule 26(b)(2)(B) and the “reasonable” efforts requirements under Rule 26(b). I used language of that Bagley Order to help support my argument that there is far more to The Law than mere reason and logic. I also argued that this is a very good thing, for otherwise lawyers could easily be replaced by robots.

Another e-discovery order was entered in Bagley on December 22, 2016. Ruling On Plaintiff’s Motion To Compel. Bagely v. Yale, Civil Action No. 3:13-CV-1890 (CSH). Bagley Two again provokes me to write on this key topic. This second order, like the first, was written by Senior District Judge Charles S. Haight, Jr.. The eighty-six year old Judge Haight is becoming one of my favorite legal scholars because of his excellent analysis and his witty, fairly transparent writing style. This double Yale graduate has a way with words, especially when issuing rulings adverse to his alma mater. He is also one of the few judges that I have been unable to locate an online photo of, so use your imagination, which, by the way, is another powerful tool that separates us from AI juiced robots.

Lady JusticeI pointed out in the Reasonable Man article, and it bears repetition, that I am no enemy of reason and rationality. It is a powerful tool in legal practice, but it is hardly our only tool. It is one of many. The “Reasonable Man” is one of the most important ideas of Law, symbolized by the balance scales, but it is not the only idea. In fact, it is not even the most important idea for the Law. That honor goes to Justice. Lady Justice holding the scales of reason is the symbol of the Law, not the scales alone. She is usually depicted with a blindfold on, symbolizing the impartiality of justice, not dependent on the social status or position of the litigants.

My view is that lawyer reasoning should continue in all future law, but should augmented by artificial intelligence. With machines helping to rid us of hidden biases in all human reason, and making that part of our evaluation easier and more accurate, we are free to put more emphasis on our other lawyer skills, on the other factors that go into our evaluation of the case. These include our empathy, intuition, emotional intelligence, feelings, humor, perception (including lie detection), imagination, inventiveness and sense of fairness and justice. Reason is only one of many human capacities involved in legal decision making.

In Reasonable Man article I analyzed the first Bagley Order to help prove that point:

Bagley shows that the dividing line between what is reasonable and thus acceptable efforts, and what is not, can often be difficult to determine. It depends on a careful evaluation of the facts, to be sure, but this evaluation in turn depends on many subjective factors, including whether one side or another was trying to cooperate. These factors include all kinds of prevailing social norms, not just cooperativeness. It also includes personal values, prejudices, education, intelligence, and even how the mind itself works, the hidden psychological influences. They all influence a judge’s evaluation in any particular case as to which side of the acceptable behavior line a particular course of conduct falls.

In close questions the subjectivity inherent in determinations of reasonability is obvious. This is especially true for the attorneys involved, the ones paid to be independent analysts and objective advisors. People can, and often do, disagree on what is reasonable and what is not. They disagree on what is negligent and what is not. On what is acceptable and what is not.

All trial lawyers know that certain tricks of argument and appeals to emotion can have a profound effect on a judge’s resolution of these supposedly reason-based disagreements. They can have an even more profound affect on a jury’s decision. (That is the primary reason that there are so many rules on what can and cannot be said to a jury.)

lady_justice_not_blindIn spite of practical knowledge by the experienced, the myth continues in our profession that reasonability exists in some sort of objective, platonic plane of ideas, above all subjective influences. The just decision can be reached by deep, impartial reasoning. It is an article of faith in the legal profession, even though experienced trial lawyers and judges know that it is total nonsense, or nearly so. They know full well the importance of psychology and social norms. They know the impact of cognitive biases of all kinds, including, for example, hindsight biasSee Roitblat, The Schlemiel and the Schlimazel and the Psychology of Reasonableness (Jan. 10, 2014, LTN) (link is to republication by a vendor without attribution) (“tendency to see events that have already occurred as being more predictable than they were before they actually took place“); Also see Rimkus v Cammarata, 688 F. Supp. 2d 598 (S.D. Tex. 2010) (J. Rosenthal) (“It can be difficult to draw bright-line distinctions between acceptable and unacceptable conduct in preserving information and in conducting discovery, either prospectively or with the benefit (and distortion) of hindsight.” emphasis added); Pension Committee of the University of Montreal Pension Plan, et al. v. Banc of America Securities, LLC, et al., 685 F. Supp. 2d 456 (S.D.N.Y. Jan. 15, 2010 as amended May 28, 2010) at pgs. 463-464 (J. Scheindlin) (‘That is a judgment call that must be made by a court reviewing the conduct through the backward lens known as hindsight.” emphasis added).

In my conclusion to Reasonable Man article I summarized my thoughts and tried to kick off further discussion of this topic:

The myth of objectivity and the “Reasonable Man” in the law should be exposed. Many naive people still put all of their faith in legal rules and the operation of objective, unemotional logic. The system does not really work that way. Outsiders trying to automate the law are misguided. The Law is far more than logic and reason. It is more than the facts, the surrounding circumstances. It is more than evidence. It is about people and by people. It is about emotion and empathy too. It is about fairness and equity. It’s prime directive is justice, not reason.

That is the key reason why AI cannot automate law, nor legal decision making. Judge Charles (“Terry”) Haight could be augmented and enhanced by smart machines, by AI, but never replaced. The role of AI in the Law is to improve our reasoning, minimize our schlemiel biases. But the robots will never replace lawyers and judges. In spite of the myth of the Reasonable Man, there is far more to law then reason and facts. I for one am glad about that. If it were otherwise the legal profession would be doomed to be replaced by robots.

Bagley Two

Now let us see how Judge Haight once again helps prove the Reasonable Man points by his opinion in Bagley Two. Ruling On Plaintiff’s Motion To Compel (December 22, 2016), Bagely v. Yale, Civil Action No. 3:13-CV-1890 (CSH). In this opinion the reasonability of defendant Yale’s preservation efforts was considered in the context of a motion to compel discovery. His order again reveals the complexity and inherent subjectivity of all human reason. It shows that there are always multiple factors at work in any judge’s decision beyond just thought and reason, including an instinct born out of long experience for fairness and justice. Once again I will rely primarily on Judge Haight’s own words. I do so because I like the way he writes and because you need to read his original words to appreciate what I am talking about. But first, let me set the stage.

Reasonable_guageYale sent written preservation notices to sixty-five different people, which I know from thousands of matters is a very large number of custodians to put on hold in a single-plaintiff discrimination case. But Yale did so in stages, starting on March 1, 2013 and ending on August 7, 2014. Eight different times over this period they kept adding people to their hold list. The notices were sent by Jonathan Clune, a senior associate general counsel of Yale University. The plaintiff argued that they were too late in adding some of the custodians and otherwise attacked the reasonability of Yale’s efforts.

The plaintiff was not seeking sanctions yet for the suspected unreasonable efforts, they were seeking discovery from Yale as to details of these efforts. Specifically they sought production of: (1) the actual litigation hold notices; (2) the completed document preservation computer survey forms that were required to be returned to the Office of General Counsel by each Litigation Hold Recipient; and, (3) an affidavit detailing the retention and production for all non-ESI documents collected from each of the Litigation hold Recipients.

Yale opposed this discovery claiming any more information as to its preservation efforts was protected from discovery under the attorney-client privilege and attorney work product protection.  Yale also argued that even if the privileges did not apply here, the discovery should still be denied because to obtain such information a party must first provide convincing proof that spoliation in fact occurred. Yale asserted that the plaintiff failed to provide sufficient proof, or even any proof, that spoliation had in fact occurred.

Here is the start of Judge Haight’s evaluation of the respective positions:

Mr. Clune’s litigation hold notices stressed that a recipient’s failure to preserve pertinent documents could “lead to legal sanctions” against Yale. Clune was concerned about a possible sanction against Yale for spoliation of evidence. While Clune’s notices did not use the term, “spoliation” is a cardinal litigation vice, known by that name to trial lawyers and judges, perhaps unfamiliar to academics unable to claim either of those distinctions. Clune’s notices made manifest his concern that a trial court might sanction Yale for spoliation of evidence relevant to the University SOM’s decision not to reappoint Bagley to its faculty.

skull_bones_yaleNote the jab at academics. By the way, in my experience his observation is correct about the cluelessness of most law professors when it comes to e-discovery. But why does Judge Haight take the time here to point that out? This case did not involve the Law School. It involved the business school professors and staff (as you would expect). It is important to know that Judge Haight is a double Yale graduate, both undergraduate and law school. He graduated from Yale Law in 1955. He was even a member of Yale’s infamous of Skull and Bones society. (What does 322 really mean? Eulogia?) Perhaps there are some underlying emotions here? Judge Haight does seem to enjoy poking Yale, but he may do that in all his cases with Yale out of an eccentric kind of good humor, like a friendly shoulder punch. But I doubt it.

To be continued … 


Five Tips To Avoid Mistakes In Electronic Document Review

January 9, 2017

5-Tips_ReviewThese tips are based on a long life of litigation legal practice, including thousands of document reviews going back to 1978. I have seen hundreds of mistakes over the years, especially in the last decade when my work as a lawyer has been limited to electronic discovery. Many of these blunders were made by “the other side.” Some were funny and made me smile, others were not and led to motions of all kinds. Keeping it real, I have made my own fair share of errors too. Those lessons were painful, but are now deeply etched. No doubt I would have made many more errors, but for the generous guidance provided by more senior and experienced attorneys that I have had the very good fortune to work with. It is with this great debt in mind that I offer up these tips.

Click here to download a Word version. [An earlier version of this article was published last year.)

Some Mistakes are Funny

Gloat_SimpsonsOn the funny side of observing document review mistakes, I will never forget the time, not too long ago, where the other side produced documents to us with the most important ones placed together up front. That was a surprising electronic zipped production to open. It was fairly obvious what had happened. The highly relevant documents were not mixed-in as they should have been with the other more plebeian merely relevant documents. Instead, the hot documents were all together at the front of the production with the lowest numbers. (Sixth tip – never do that!) Our team laughed at the error, as we easily and quickly found lots of great stuff to help our case. Still, we kept a discrete silence and did not gloat. (Seventh tip – Never do that either, at least not in front of them!)

Opposing counsel, who later became a friend, admitted the error to me months after the case settled. He found out what happened a few days too late. Even he chuckled as to how inadvertently “nice” they were. As is often the case, the mistake did not really matter in the end. We would have recognized the hot documents anyway. As usual when errors happen in e-discovery, he blamed the vendor. They almost always get blamed for mistakes, but, the truth is, vendors are just tools of the attorneys (no offense dear vendors, tools are important). The attorneys are almost always the ones ultimately responsible for screw-ups.

Lessons of History

Clarence Darrow and William Jennings BryanThe five tips shared here are born out of a long history of document review. How relevant could past legal practice be you might ask? In 1980, just like today, document discovery was and still is a search for documents and communications that have probative value. The tools and document forms have changed, but not the basic tasks. The federal rules have changed too, but not that much, and the ethics of an attorney controlled discovery system, not at all.

Discovery has always been a search to determine what really happened, to sort out the conflicting stories and find evidence for use at trial. Legal counsel never creates facts. That is called falsification of evidence and is a crime. Attorneys just find the facts and then do the best they can with them; make them look as good as possible by legal argument and clever presentation. The discovery effort has always been a fairly cooperative one between attorneys. It has always been a question of trust but verify. Conversely, there have always been a few slime balls in the Bar who do not get that, but that is what judges (and Bar ethics committees) are for, and they soon sniff out the weasels. All things evolve and change, but some basic patterns remain the same.

By the early nineties I sometimes had to look beyond paper files and investigate computers for possible evidence. That occasionally happened in trade-secret cases, much like today. Forensics was fairly easy back then. My favorite ESI search and review tool was Norton Utilities, which I had been using since the mid-eighties. Like most computer lawyers around those days, as we were called, I was by necessity a DOS master, and, until around 1997, a one man IT department for my law firm. It only took a few hours a week to do that for my then twenty person law firm, along with the help of an outside “computer repairman.” I would always learn a lot from those guys.

DOS_Screen

compuserve_FTPThe frequency of document reviews that included computer files increased somewhat in the early nineties as law firm clients began using more technologies. By then most corporations and many individuals began to rely on computers for work, although almost nobody but a few techno-nerds used email, electronic messaging and pre-Internet online communities. (I was considered an odd-ball hobbyist for using electronic messaging with CompuServeThe SourceThe Well, etc. in the mid to late eighties, and the Internet since 93-94 with Mosaic, then NetScape.) Instead, facsimile machines were the rage at that time, and they just generated more paper discovery.

Although the presence, or not, of computer files was a discovery issue in trade-secret and non-compete cases in the early 90s, electronic communications discovery was still not a factor. The adoption of tech by businesses and lawyers seemed slow to me then, and still seems slow today. (When will companies and law firms adopt the AI technologies that have been readily available for years now?)

Discovery of computer files, as e-discovery was then called, started to take off in the late nighties as corporate email finally became popular. It was part of the public’s discovery on the Internet. I had the opportunity back in 1996 to write a chapter on Internet law for the then popular book by Macmillan (Que), Special Edition, Using the Internet (3rd Ed. 1996), which is incredibly still sold on Amazon.

Using_Internet_96

My chapter in the book was the first after the introduction and was titled by the editors “Your Cyber Rights and Responsibilities: Law and Etiquette.” I still smile when I see how they tasked me not only with explaining all of the Law of the Internet, but also proper online etiquette. I tried to address the legal issues in 52 pages (I pretty much ignored the etiquette part), including discussion of all of the key cases of the day. I covered things like free speech, online agreements, privacy rights, crime, security and cryptology (I even included a coded message, which surprisingly, the editor decrypted and then made me clean up). These are all still hot issues.

When businesses started using the Internet too, the discovery and review of electronic information really started to take off. That is when electronic document review was truly born. That is also when the first e-discovery vendors like Kroll and Attenex (now FTI) started to become large national organizations.

By early turn of the century potential evidence in the form of computer files and emails were multiplying like tribbles. The amount of electronic  evidence started to explode. It has been a dangerous avalanche of e-discovery overload ever since. The needle in the haystack problem was born that still challenges document review today. See Document Review and Predictive Coding: Video Talks – Part One.

Like several others I sensed the danger in the information explosion, saw how it was overwhelming discovery and making it too expensive. For that reason in 2006, again like several others (although I was the only one in Florida), I stopped practicing as a commercial litigator and limited my work to e-discovery only. Since that time electronic document reviews have been front and center in my practice. To be honest, I have not even seen an original paper document in discovery since that time, although I have heard they still exist. (Other attorneys have shown me their paper cuts to prove it. What a dangerous job paper document reviews can be.)

Five Videos Explain the Five Tips

The five tips shared here are rooted in the ancient history of paper productions, and pre-vendor computer file search, but are designed for current electronic practices and post 2015 amended rules of procedure. After a lifetime of work in this area, there are more tips I could provide, and will do so in the future, I’m sure, but these are the ones that occur to me today. The videos below explain these five tips and how you can implement them.

In this opening eleven-minute video I share what may be the most important tip of all, the avoidance of time pressures and resultant hurried activities.

Tip # 1 – Never Put Yourself in a Time Bind – Be Proactive

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5-Tips_Review_ETHICSThe next video explains the second tip, Ethics. It is always important to do the right thing, including the production of requested relevant documents that will harm your client and their case.  Ethics is document review, like in all other areas of legal practice, indeed, like all other areas of life, is imperative, not discretionary. My thanks to the legal mentors in my past who drilled this into me from my first day out of law school. Any success I have enjoyed in my career I owe, at least in part, to their good influences.

slippery_slopeCall this Ethics advice the Boy Scout tip if you wish, but it really works to avoid a panoply of errors, including potentially career-ending ones. It also helps you to sleep at night and have a clean conscience. The slippery slopes of morality are where the worst errors are made in all legal tasks, but this is particularly true in document review. Discovery in our system is run by lawyers, not judges, magistrates, or special masters. It is based on lawyers faithful conduct and compliance with the rules, including the all-important rules requiring the voluntary production of evidence harmful to a client (a notion strange to many legal systems outside of the U.S.).

Lawyers know the rules, even if their clients do not, and it is critical that they follow them earnestly, holding up against all pressures and temptations. At the end of the day, your reputation and integrity are all that you have, so compromising your ethics is never an acceptable alternative. The Rules of Professional Conduct must be the guiding star of all legal practice, including electronic document review. It is your job as a lawyer to find the evidence and argue it’s meaning; never to hide it. This video is a reminder of a core truth of lawyer obligations as officers of the court.

Tip #2 – Ethics and Electronic Discovery

For more of Losey’s thoughts on ethics and e-discovery, seeLawyers Behaving Badly: Understanding Unprofessional Conduct in e-Discovery, 60 Mercer L. Rev. 983 (Spring 2009); Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf. J. 377 (2009 Supp.); e-Discovery for Everyone, Chapters 15-19, (ABA, 2017).

focus2Our third tip is Focused Concentration, which was mentioned in passing in the Part One video on Time, and also tips four and five, on Worms and Check Again. The Focus tip is based on my own experiences in cultivating the ability to concentrate on legal work, or anything else. It is contra to the popular, but erroneous notion, a myth really, that you can multi-task and still do each task efficiently. Our brain does not work that way. See Eg. Crenshaw, The Myth of Multitasking: How “Doing It All” Gets Nothing Done; and the work of neuroscientist Daniel J Levitin, who has found the only exception is adding certain background music. All document reviewers who wear headsets, myself included, know this exception very well.

Tip #3 – Focused Concentration

Steve-Jobs-zenFor more on quality control and improved lifestyle by focused attention and other types of meditation, see my earlier video blog, Document Review and Predictive Coding: Video Talks – Part Six, especially the 600 word introduction to that video that includes information on the regular meditation practices of Supreme Court Justice Stephen Breyer, among others. See A Word About Zen Meditation. This practice helped Steve Jobs, and helps Justice Breyer and countless others. It could help you too. Also see these excellent online services, Insight Timer  and Mindfulnes App. These practices will, at the very least, allow for more focused attention to what you are doing, including document review, and thus greatly reduce mistakes.

The next Worms tip is a simple technical one, unique to e-discovery, where Worm is an acronym that means write once, read many times. I prefer to make productions on write-only or recordable only CDs, aka, CD-R, or DVD-R, and not by file transfers. I do not want to use a CD-RW, or DVD-RW meaning one that is rewritable.

Tip #4 – Use WORMS to Produce

Speaking of WORMs, did you know that the SEC requires all broker-dealers to preserve its records for three years in a format that prevents alteration? That means our Write Once Read Many times format. SEC Interpretation: Electronic Storage of Broker-Dealer Records, 17 CFR Part 241 [Release No. 34-47806] (5/12/13).

On December 21, 2016, twelve large broker-dealer firms agreed to pay fines totaling $14.4 million to the Financial Industry Regulatory Authority (FINRA) over allegations, in FINRA’s words, that “they failed to preserve electronic records in a WORM format that couldn’t be altered.” This has to be the all time most expensive “can of worms.”

The fifth tip of Check Again, has to do with the importance of redundancy in quality control, subject only to proportionality considerations, including the tip to spot check your final production CD. I discuss briefly the tendency of lawyers to be trapped by paralysis by analysis, and why we are sometimes considered deal killers by business people because we focus so much on risk avoidance and over-think things. There has to be a proportional limit on the number and cost of double-checks in document review. I also mention in the fifth tip my Accept of Zero Error and ei-Recall checks, which are quality assurance efforts that we make in larger document review projects.

Tip #5 – Check Again

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These are five tips to help everyone doing electronic document review. They are not necessarily the “top five,” but they are all important. We suggest you drill these five best practices into your document review team.

For more information on best practices of document review see these three periodically updated resources:

 

 


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