The Great Debate in AI Ethics Surfaces on Social Media: Elon Musk v. Mark Zuckerberg

August 6, 2017

I am a great admirer of both Mark Zuckerberg and Elon Musk. That is one reason why the social media debate last week between them concerning artificial intelligence, a subject also near and dear, caused such dissonance. How could they disagree on such an important subject? This blog will lay out the “great debate.”

It is far from a private argument between Elon and Mark.  It is a debate that percolates throughout scientific and technological communities concerned with AI. My sister web begins with this debate. If you have not already visited this web, I hope you will do so after reading this blog. It begins by this same debate review. You will also see at that I am seeking volunteers to help: (1) prepare a scholarly article on the AI Ethics Principles already created by other groups; and, (2) research the viability of sponsoring an interdisciplinary conference on AI Principles. For more background on these topics see the library of suggested videos found at AI-Ethics Videos. They provide interesting, easy to follow (for the most part), reliable information on artificial intelligence. This is something that everybody should know at least something about if they want to keep up with ever advancing technology. It is a key topic.

The Debate Centers on AI’s Potential for Superintelligence

The debate arises out of an underlying agreement that artificial intelligence has the potential to become smarter than we are, superintelligent. Most experts agree that super-evolved AI could become a great liberator of mankind that solves all problems, cures all diseases, extends life indefinitely and frees us from drudgery. Then out of that common ebullient hope arises a small group that also sees a potential dystopia. These utopia party-poopers fear that a super-evolved AI could doom us all to extinction, that is, unless we are not careful. So both sides of the future prediction scenarios agree that many good things are possible, but, one side insists that some very bad things are also possible, that the dark side risks even include extinction of the human species.

The doomsday scenarios are a concern to some of the smartest people alive today, including Stephen Hawking, Elon Musk and Bill Gates. They fear that superintelligent AIs could run amuck without appropriate safeguards. As stated, other very smart people strongly disagree with all doomsday fears, including Mark Zuckerberg.

Mark Zuckerberg’s company, Facebook, is a leading researcher in the field of general AI. In a backyard video that Zuckerberg made live on Facebook on July 24, 2017, with six million of his friends watching on, Mark responded to a question from one: “I watched a recent interview with Elon Musk and his largest fear for future was AI. What are your thoughts on AI and how it could affect the world?”

Zuckerberg responded by saying:

I have pretty strong opinions on this. I am optimistic. I think you can build things and the world gets better. But with AI especially, I am really optimistic. And I think people who are naysayers and try to drum up these doomsday scenarios — I just, I don’t understand it. It’s really negative and in some ways I actually think it is pretty irresponsible.

In the next five to 10 years, AI is going to deliver so many improvements in the quality of our lives.

Zuckerberg said AI is already helping diagnose diseases and that the AI in self-driving cars will be a dramatic improvement that saves many lives. Zuckerberg elaborated on his statement as to naysayers like Musk being irresponsible.

Whenever I hear people saying AI is going to hurt people in the future, I think yeah, you know, technology can generally always be used for good and bad, and you need to be careful about how you build it and you need to be careful about what you build and how it is going to be used.

But people who are arguing for slowing down the process of building AI, I just find that really questionable. I have a hard time wrapping my head around that.

Mark’s position is understandable when you consider his Hacker Way philosophy where Fast and Constant Improvements are fundamental ideas. He did, however, call Elon Musk “pretty irresponsible” for pushing AI regulations. That prompted a fast response from Elon the next day on Twitter. He responded to a question he received from one of his followers about Mark’s comment and said: I’ve talked to Mark about this. His understanding of the subject is limited. Elon Musk has been thinking and speaking up about this topic for many years. Elon also praises AI, but thinks that we need to be careful and consider regulations.

The Great AI Debate

In 2014 Elon Musk referred to developing general AI as summoning the demon. He is not alone in worrying about advanced AI. See eg. and Steven Hawking, usually considered the greatest genius of our time, has also commented on the potential danger of AI on several occasions. In speech he gave in 2016 at Cambridge marking the opening of the Center for the Future of Intelligence, Hawking said: “In short, the rise of powerful AI will be either the best, or the worst thing, ever to happen to humanity. We do not yet know which.” Here is Hawking’s full five minute talk on video:

Elon Musk warned state governors on July 15, 2017 at the National Governors Association Conference about the dangers of unregulated Artificial Intelligence. Musk is very concerned about any advanced AI that does not have some kind of ethics programmed into its DNA. Musk said that “AI is a fundamental existential risk for human civilization, and I don’t think people fully appreciate that.” He went on to urge the governors to begin investigating AI regulation now: “AI is a rare case where we need to be proactive about regulation instead of reactive. Because I think by the time we are reactive in AI regulation, it’s too late.”

Bill Gates agrees. He said back in January 2015 that

I am in the camp that is concerned about super intelligence. First the machines will do a lot of jobs for us and not be super intelligent. That should be positive if we manage it well. A few decades after that though the intelligence is strong enough to be a concern. I agree with Elon Musk and some others on this and don’t understand why some people are not concerned.

Elon Musk and Bill Gates spoke together on the Dangers of Artificial Intelligence at an event in China in 2015. Elon compared work on the AI to work on nuclear energy and said it was just as dangerous as nuclear weapons. He said the right emphasis should be on AI safety, that we should not be rushing into something that we don’t understand. Statements like that makes us wonder what Elon Musk knows that Mark Zuckerberg does not?

Bill Gates at the China event responded by agreeing with Musk. Bill also has some amusing, interesting statements about human wet-ware, our slow brain algorithms. He spoke of our unique human ability to take experience and turn it into knowledge. See: Examining the 12 Predictions Made in 2015 in “Information → Knowledge → Wisdom. Bill Gates thinks that as soon as machines gain this ability, they will almost immediately move beyond the human level of intelligence. They will read all the books and articles online, maybe also all social media and private mail. Bill has no patience for skeptics of the inherent danger of AI: How can they not see what a huge challenge this is?

Gates, Musk and Hawking are all concerned that a Super-AI using computer connections, including the Internet, could take actions of all kinds, both global and micro. Without proper standards and safeguards they could modify conditions and connections before we even knew what they were doing. We would not have time to react, nor the ability to react, unless certain basic protections are hardwired into the AI, both in silicon form and electronic algorithms. They all urge us to take action now, rather than wait and react.

To close out the argument for those who fear advanced AI and urge regulators to start thinking about how to restrain it now, consider the Ted Talk by Sam Harris on October 19, 2016, Can we build AI without losing control over it? Sam, a neuroscientist and writer, has some interesting ideas on this.

On the other side of the debate you will find most, but not all, mainstream AI researchers. You will also find many technology luminaries, such as Mark Zuckerberg and Ray Kurzweil. They think that the doomsday concerns are pretty irresponsible. Oren Etzioni, No, the Experts Don’t Think Superintelligent AI is a Threat to Humanity (MIT Technology Review, 9/20/16); Ben Sullivan, Elite Scientists Have Told the Pentagon That AI Won’t Threaten Humanity (Motherboard 1/19/17).

You also have famous AI scholars and researchers like Pedro Domingos who are skeptical of all superintelligence fears, even of AI ethics in general. Domingos stepped into the Zuckerberg v. Musk social media dispute by siding with Zuckerberg. He told Wired on July 17, 2017 that:

Many of us have tried to educate him (meaning Musk) and others like him about real vs. imaginary dangers of AI, but apparently none of it has made a dent.

Tom Simonite, Elon Musk’s Freak-Out Over Killer Robots Distracts from Our Real AI Problems, (Wired, 7/17/17).

Domingos also famously said in his book, The Master Algorithm: How the Quest for the Ultimate Learning Machine Will Remake Our World, a book which we recommend:

People worry that computers will get too smart and take over the world, but the real problem is that they’re too stupid and they’ve already taken over the world.

We can relate with that. On the question of AI ethics Professor Domingos said in a 2017 University of Washington faculty interview:

But Domingos says that when it comes to the ethics of artificial intelligence, it’s very simple. “Machines are not independent agents—a machine is an extension of its owner—therefore, whatever ethical rules of behavior I should follow as a human, the machine should do the same. If we keep this firmly in mind,” he says, “a lot of things become simplified and a lot of confusion goes away.” …

It’s only simple so far as the ethical spectrum remains incredibly complex, and, as Domingos will be first to admit, everybody doesn’t have the same ethics.

“One of the things that is starting to worry me today is that technologists like me are starting to think it’s their job to be programming ethics into computers, but I don’t think that’s our job, because there isn’t one ethics,” Domingos says. “My job isn’t to program my ethics into your computer; it’s to make it easy for you to program your ethics into your computer without being a programmer.”

We agree with that too. No one wants technologists alone to be deciding ethics for the world. This needs to be a group effort, involving all disciplines, all people. It requires full dialogue on social policy, ultimately leading to legal codifications.

The Wired article of Jul 17, 2017, also states Domingos thought it would be better not to focus on far-out superintelligence concerns, but instead:

America’s governmental chief executives would be better advised to consider the negative effects of today’s limited AI, such as how it is giving disproportionate market power to a few large tech companies.

The same Wired article states that Iyad Rahwan, who works on AI and society at MIT, doesn’t deny that Musk’s nightmare scenarios could eventually happen, but says attending to today’s AI challenges is the most pragmatic way to prepare. “By focusing on the short-term questions, we can scaffold a regulatory architecture that might help with the more unpredictable, super-intelligent AI scenarios.” We agree, but are also inclined to think we should at least try to do both at the same time. What if Musk, Gates and Hawking are right?

The Wired article also quotes, Ryan Callo, a Law Professor at the University of Washington, as saying in response to the Zuckerberg v Musk debate:

Artificial intelligence is something policy makers should pay attention to, but focusing on the existential threat is doubly distracting from it’s potential for good and the real-world problems it’s creating today and in the near term.

Simonite, Elon Musk’s Freak-Out Over Killer Robots Distracts from Our Real AI Problems, (Wired, 7/17/17).

But how far-out from the present is superintelligence? For a very pro-AI view, one this is not concerned with doomsday scenarios, consider the ideas of Ray Kurzweil, Google’s Director of Engineering. Kurzweil thinks that AI will attain human level intelligence by 2019, but will then mosey along and not attain super-intelligence, which he calls the Singularity, until 2045.

2029 is the consistent date I have predicted for when an AI will pass a valid Turing test and therefore achieve human levels of intelligence. I have set the date 2045 for the ‘Singularity’ which is when we will multiply our effective intelligence a billion fold by merging with the intelligence we have created.

Kurzweil is not worried about the impact of super-intelligent AI. To the contrary, he looks forward to the Singularity and urges us to get ready to merge with the super-AIs when this happens. He looks at AI super-intelligence as an opportunity for human augmentation and immortality. Here is a video interview in February 2017 where Kurzweil responds to fears by Hawking, Gates, and Musk about the rise of strong A.I.

Note Ray conceded the concerns are valid, but thinks they miss the point that AI will be us, not them, that humans will enhance themselves to super-intelligence level by integrating with AI – the Borg approach (our words, not his).

Getting back to the more mainstream defenses of super-intelligent AI, consider Oren Etzioni’s Ted Talk on this topic.

Oren Etzioni thinks AI has gotten a bad rap and is not an existential threat to the human race. As the video shows, however, even Etzioni is concerned about autonomous weapons and immediate economic impacts. He invited everyone to join him and advocate for the responsible use of AI.


The responsible use of AI is a common ground that we can all agree upon. We can build upon and explore that ground with others at many venues, including the new one I am trying to put together at Write me if you would like to be a part of that effort. Our first two projects are: (1) to research and prepare a scholarly paper of the many principles proposed for AI Ethics by other groups; and (2) put on a conference dedicated to dialogue on AI Ethics principles, not a debate. See for more information on these two projects. Ultimately we hope to mediate model recommendations for consideration by other groups and regulatory bodies. is looking forward to working with non-lawyer technologists, scientists and others interested in AI ethics. We believe that success in this field depends on diversity. It has to be very interdisciplinary to succeed. Lawyers should be included in this work, but we should remain a minority. Diversity is key here. We will even allows AIs, but first they must pass a little test you may have heard of.  When it comes to something as important all this, all faces should be in the book, including all colors, races, sexes, nationalities, education, from all interested companies, institutions, foundations, governments, agencies, firms and teaching institutions around the globe. This is a human effort for a good AI future.



The Solution to Empty-Suits in the Board Room: The “Hacker Way” of Management – Part Two

August 22, 2013

Empty_Suits_SkyThis is the conclusion to The Solution to Empty-Suits in the Board Room: The “Hacker Way” of Management – Part One. This second part discusses possible applications in e-discovery of the Hacker Way ideals of Boldness, Openness, and Values. Part one has already covered Impactful and Fast. Both parts are a followup to my blog, “The Hacker Way” – What the e-Discovery Industry Can Learn From Facebook’s Management Ethic, and my LTN editorial, Vendor CEOs: Stop Being Empty Suits & Embrace the Hacker Way.

My LTN article on Empty Suits in the boardroom anticipated the keynote talk at ILTA by Scott Klososky, reported in LTN by Monica Bay in Are You a Dead Leader Walking or Driving With Your High Beams? Apparently many are now able to see that most of the emperors of e-discovery have no clothes, that the suits in charge do not know how to properly manage cutting edge, high-tech companies. Klososky’s advice seems compatible with the Hacker Way credo that Facebook’s CEO, Mark Zuckerberg, and I endorse. In his Dead Leader Walking speech Klososky is reported by Monica to have advised the ILTA audience:

[T]o avoid being “in the middle of the pack. It’s not safe. You have to be willing to bleed a little.” Take the “alchemist role, be creative and innovative. Ninety percent of business intelligence is to be creative and innovative,” he said.

Here is Klososky’s colorful slide from this part of his presentation.


Also check out the summary of Klososky’s presentation by VQ, entitled ILTA 2013: Technology Darwinism. They quote Klososky as saying:

The need to adapt to technology is no longer a technology thing – it’s about survival.

Klososky went on to explain what he calls Technology Darwinism, which occurs when, as the VQ article puts it:

[T]he pace of technology innovation is faster than the speed people adapt to new tools and methods, creating a technology risk gap. This gap might lead to a complete restructure of the market – and the survival of the fittest, i.e. firms who manage to adapt to the new market conditions. When the speed of change in a law firm is lower than the speed of change in the industry, a technology risk arises, which impacts the firm’s service relevancy, client connections, brand reputation and talent acquisition.

Klososky went on to describe what he calls a Technology Inflection Point where new technology changes an industry so dramatically that there are winners and losers. The winners thrive and prosper whereas losers enter into the “death spiral”. He gave several corporate examples, including Kodak, that made money until the year before it filed bankruptcy. VQ reported Klososky’s belief that:

[M]any law firm leaders, refuse to fully understand and act on the fact that the firm is almost dying. As long as the firm makes money, many law firm leaders seem to think that everything is fine and that they are so successful that there is no need to apply new technologies.

Klososky’s advice is well-aligned with the Bold and Fast contours of the Hacker Way discussed in part one of this article. As Zuckerberg’s puts it in his explanation of the Hacker Way, “The riskiest thing is to take no risks.” Now onto the other key pointers of Bold, Open and Values.



Who wants to hire a mousy lawyer? Nobody! Timid and lawyer are two words that should never go together. Yet for most AmLaw 100 law firms today, they do, at least when it comes to e-discovery. For a law firm to be bold, they need to do what my law firm did, and others have done. They need to hire outside attorneys who are already skilled, and they need to make a full commitment to these attorneys and what they bring to the table. The e-discovery experts should be provided with authority to make a real e-discovery team, not just design a marketing ploy. In that way law firms can keep improving and can build a truly effective law firm for the 21st Century.

As Zuckerberg explained in his Letter to Investors:

The Hacker Way is an approach to building that involves continuous improvement and iteration. Hackers believe that something can always be better, and that nothing is ever complete. They just have to go fix it — often in the face of people who say it’s impossible or are content with the status quo.

If a law firm is satisfied with the status quo, they will not invest in e-discovery. They will be happy with their empty suits. That is, until the hacker led firms start to eat their lunch. Law firm management needs to be bold, to go all-in for e-discovery. They need to hire full time specialists. It does not work to simply ask a few lawyers in the firm to dabble part time.

Timid, halfway, band-aid measures do not work in any complex endeavor, including e-discovery. You have got to go either all-in, or all-out. The days of a law firm setting up a marketing type e-discovery department by sending out a few of its attorneys to CLEs, and then posturing them as experts, are long gone. It takes bold all-out efforts. Again, you need to look beyond this year’s profits to the long term viability of the firm.

E-discovery commentator and consultant George Socha is also leery of poser type law firm practice groups. In an LTN article, True Grit: Four Models to Rein in E-Discovery Costs, George is quoted as saying that most law firms:

[C]ontinue to be marketing groups more than anything else. I continue to see that most lawyers at firms with putative internal EDD practice groups either do not know those groups exist or do not use them. Firms ought to do a better job of taking control of EDD, at least for those clients who lack the wherewithal to take on EDD themselves. Firms seem unwilling, however, to make the initial and on-going investments needed for that to happen.

How many of the AmLaw 100 law firm’s have bona fide e-discovery practice groups? That is the true litmus test for bold management, a test which most firm’s fail. It bears repeating: timid and lawyer are two words that were never meant to go together. Be bold law firm managers. Be a mighty mouse, not timid rat. Go all-in with e-discovery and insure the future prosperity of your firm.

As to vendors, you must also be bold, willing to take a chance, willing to lead, not just tag along with the changes sweeping the industry. Stop trying to milk your outdated products for all they are worth. Get rid of your old products instead of just adding a few minor enhancements each year. Shorten your new product cycles. Invest in research. Made bold moves, big moves. Get rid of the empty suits in your boardroom and go with bona fide hackers. See Vendor CEOs: Stop Being Empty Suits & Embrace the Hacker Way.

Bold vendors are already embracing the future of artificial intelligence, already building new types of active machine learning software. They are abandoning the old linear review models, and focusing on the SMEs, not the contract reviewers. They understand that the future is the Army of One review team, not hordes of contract lawyers. They understand how AI can change the law, can bring down the costs of review while at the same time improving quality. They are bold enough to act on this understanding, bold enough to pioneer new products.

LexingtonI have been challenged by a few of my readers on my use of the term AI, artificial intelligence, in connection with the new search algorithms. They think it is a misuse of the word. They may be right in so far as some types of TAR are concerned, namely technologies that are not based on active machine learning. But for me, when I refer to the new search algorithms, the bold software that is rocking the world of e-discovery, I am referring to the active machine learning based software. Active machine learning is a type of machine learning. To quote Wikipedia:

Machine learning, a branch of artificial intelligence, concerns the construction and study of systems that can learn from data. For example, a machine learning system could be trained on email messages to learn to distinguish between spam and non-spam messages. After learning, it can then be used to classify new email messages into spam and non-spam folders.

Moreover, the generally accepted definition of AI is:

The study and design of “intelligent agents” where an intelligent agent is a system that perceives its environment and takes actions that maximize its chances of success.

This is what I mean by AI. The predictive coding software of some bold vendors use this kind of machine learning. The methods that I promote are also sometimes called by information scientists semi-supervised learning. You train the agent on relevancy using active machine learning. You give it this limited, but often very complex and nuanced intelligence. The now intelligent agent then perceives its environment, which is the corpus of documents, and applies its intelligence to analyze and rank the documents to maximize it chances of success. Success is defined by measures of recall and precision in locating the documents you want, or as information scientists like to say, meeting the information need of the searcher.

Admittedly, we are still in the early design stages of AI agents for e-discovery. I know that our programs today will look primitive in a few years. (So will everything else as the pace of change and improvements continue to accelerate.) But the first vendors out there with smart AI agents already have a huge competitive advantage. Those stuck in hyped-up keyword searches, which is just 1960s technology with better interface and faster execution, will go the way of the buggy whip manufactures, the way of the Blackberry. You can blame their timid management for the inevitable decline.


Vendors need to be more open about their profits and their black boxes. Got some special mojo? Then patent it like the rest of the technology industry does, and protect yourself that way, instead of by over-use of trade-secrets. Software vendors, open up your black box! Show us the secret sauce and you will go a long way to building trust. No, we do not want to see the actual code. That kind of sauce should be kept secret. The code would not mean anything to us anyway. But explain the science. Tell us how it works, like Jason R. Baron and I attempt to do in a general way for all of this type of software. See: Introduction to Guest Blog: Quick Peek at the Math Behind the Black Box of Predictive Coding. Move beyond mere marketing hype. Offer real training to go with the software. Be more open and candid in what your software can and cannot do.

Lawyers also need to understand that openness builds trust. That is why transparency is now a key component to the new paradigm of discovery cooperation. The way to walk your talk in cooperation is by disclosure. How did you go about preservation? How did you go about finding the documents requested? Use the tools of sampling. Make aggressive disclosures so that you can support your proportionality arguments, otherwise you may lose, even though you have a strong position. That is what happened in the Pippins case, which the defendant later won on the pleadings. Pippins v. KPMG LLP, 2012 WL 370321 (S.D.N.Y. Feb. 3, 2012) (Judge McMahon):

[T]he record before me is devoid of information necessary to conduct such an analysis. . . . KPMG refused to allow Judge Cott, or Plaintiffs to examine even a single hard drive to ascertain the “benefit” of preservation, so there is nothing in the record before me to inform any decision. . . .

In short, KPMG is hoist on its own petard.

The petard here was KPMG’s refusal, no doubt upon advice of counsel, to make disclosure, to be open.

As Judge McMahon went on to explain:

I certainly do not intend to reverse Judge Cott’s Order on the purported ground that he erred by concluding that KPMG failed to demonstrate that preserving the hard drives was unreasonable. Frankly, the only things that were unreasonable were: (1) KPMG’s refusal to turn over so much as a single hard drive so its contents could be examined; and (2) its refusal to do what was necessary in order to engage in good faith negotiations over the scope of preservation with Plaintiffs’ counsel, in purported reliance on an order of this Court that it interpreted unreasonably. It smacks of chutzpah (no definition required) to argue that the Magistrate failed to balance the costs and benefits of preservation when KPMG refused to cooperate with that analysis by providing the very item that would, if examined, demonstrate whether there was any benefit at all to preservation.

KPMG’s attorneys here were bold in their litigation conduct, but not open. As a result their actions were seen as chutzpah. Judge McMahon earlier detailed some of the failures to be open that caused him to affirm the Magistrate’s earlier controversial ruling:

KPMG, hiding behind the stay of discovery, insisted it could not produce even one hard drive for inspection by Plaintiffs. It also refused to respond to any question regarding the content of the hard drives, furnish Plaintiffs’ access to any hard drives, inform Plaintiffs whether the data on the hard drives might be derived from other sources, or discuss the costs of possible alternatives to preserving the data on the hard drives. Instead, KPMG made a series of “take it or leave it” offers, and sought to have Plaintiffs agree that KPMG only had to preserve a smaller sample of the hard drives without giving Plaintiffs the opportunity to review the contents of any hard drive(s) first.

Old school, hide-the-ball, “take it or leave it” approaches do not work in e-discovery. Both lawyers and vendors alike have to learn how to be more open. This is difficult I know, especially for attorneys who must by ethical dictate keep their client’s secrets at all costs. But it is possible, especially if the equally compelling ethical duty of candor to the court is given proper weight.


Building social value is no longer an idealistic pie-in-the-sky dream. It is an effective business strategy. It is an especially effective strategy for professions such as medicine and law, occupations that by nature have a higher calling than just making money. Lawyers serve their clients and the law. It is a dual task, and if there is conflict between the two, the law must always prevail. That is why we have an extensive code of professional conduct. That is why discovery works.

The ethical codes of the legal profession embody our values. They provide a solid guide to the conduct of our services, our noble quest for truth, justice and liberty. The ethical codes require all lawyers to be competent, and, if faced with a legal task wherein they are not competent, such as e-discovery, to bring in other attorneys who are. Model Rule 1.1  states:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Management that embodies legal values will provide real and extensive training to its lawyers. It will take steps to ensure their competence. Vendors should do the same and ensure its customers know how to properly use the new tools they offer.

Legal ethics also requires diligence, a task that is impossible unless you actually know what to do and when to do it. Model Rule 1.3 states:

A lawyer shall act with reasonable diligence and promptness in representing a client.

Again, this mean training, helping professional know what to do. Diligence also often means fast action, just as the Hacker Way dictates. This is emphasized again by Model Rule 3.2 that requires lawyers to expedite litigation:

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.

It is also built into Rule One, which requires all other rules of civil procedure to be interpreted to allow for just, inexpensive, and speedy adjudication.

Our values also require candor towards the tribunal, the judges. Candor means openness and complete honesty. It is a core value that may never be broken under any circumstances. Should it violate your duty of loyalty to your client, you are required to withdraw from representation, rather than ever be dishonest and closed or deceptive to the presiding judge. Model Rule 3.3 states:

(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; . . . (3) offer evidence that the lawyer knows to be false. . . .

Live by this rule. It trumps all others.

Our values as lawyers also requires fairness to the opposing party in litigation and fairness to the opposing counsel. This means, among other things, that games of hide-the-ball are forbidden. This does not mean that you should provide evidence harmful to your client that was not requested, or not relevant, or that you are not legally required to produce, such as privileged information. But if it was requested, is relevant, and you are legally required to produce it, it is unethical not to do so. If the client refuses to do so, you should withdraw. Model Rule 4-3.4 states:

A lawyer shall not: (a) unlawfully obstruct another party’s access to evidence or otherwise unlawfully alter, destroy, or conceal a document or other material that the lawyer knows or reasonably should know is relevant to a pending or a reasonably foreseeable proceeding; nor counsel or assist another person to do any such act.

Our system of justice, based as it is on attorney directed discovery, depends on voluntary attorney compliance with these values.

In the United States, like the rest of the civilized world, citizens have a fundamental right to justice, to due process. If it costs too much to discover the truth, they are deprived of that right. If only the rich can afford to find the truth needed to do justice, then the values we have worked so hard to develop in this country, and the world, will be destroyed. We cannot let that happen.

Lawyers and judges must take the proportionality principle very seriously. We must innovate and constantly improve our methods to control the costs of e-discovery, to make it affordable to all. Vendors have a key role to play in this process of cost containment too. They can and must work side-by-side with law firms to keep our litigation just, speedy and inexpensive. That is how we can all work together to build social value in e-discovery.


Hacker_TriangleWe can all learn from the Hacker Way that has been implemented so successfully by Facebook and other Silicon Valley companies Facebook’s five goals and three methods provide good advice to all, even to senior lawyers wrapped up in e-discovery who may think they already know it all. There is always room for improvement, for growth. Those of us who are hands-on everyday in e-discovery know this to be true.

Hacker_pentagramThe legal profession does not usually take advice from 27 year-olds, but that is part of a meritocracy. If a young associate is right on a point of law, they are right. Their age does not matter. The law has always striven to be a meritocracy, so this is really nothing new. We should take advice from wherever it comes, if it is good advice, if it has been proven to be sound. The success of Facebook, Google, Apple and others is proof enough for me. Code wins arguments, so too does success.

Try the Hacker Way. Be bold, be fast, be open, go for maximum impact and be true to your values. If you live these values, and manage an enterprise guided by this ethic, you will attract the top talent in the field. Your management will inspire. You will not be just another empty suit focused on next quarter’s profits. You will be a true leader. You could be the next Steve Jobs. Oh yeah, and you will make a lot of money for yourself and your company in the process. As Zuckerberg says: we don’t build services to make money; we make money to build better services.

The Solution to Empty Suits in the Board Room: The “Hacker Way” of Management – Part One

August 20, 2013

Facebook’s success shows that for organizations to prosper in today’s world they must: focus on impact, be fast, be bold, be open, and build social value. To attain these goals they must adopt iterative processes for continuous improvements; they must promote a hands-on and meritocratic culture where an idea is adopted if it works, no matter who suggested it. This is the core meaning of Facebook’s motto – Code wins arguments. It is a very practical and egalitarian approach to management. Too bad most of the e-discovery industry titans do not understand this, as my recent article in LTN explains in greater detail. Vendor CEOs: Stop Being Empty Suits & Embrace the Hacker Way.


In my earlier blog “The Hacker Way” – What the e-Discovery Industry Can Learn From Facebook’s Management Ethic, I focused on Mark Zuckerberg’s Letter to Investors. The letter disclosed Facebook’s core values, which Zuckerberg calls the Hacker Way. My blog also began an exploration of how this new philosophy of work can be applied to e-discovery. This blog takes the application theme a little further. I am convinced that all organizations in the e-discovery world – law firms, vendors, corporations – can benefit from applying Facebook’s three-fold code wins methods, and five-fold Hacker Way goals. We all need to adopt 21st Century attitudes to stay relevant. We are otherwise in danger of joining the empty suit parade and offering services and products that are more like Blackberries than iPhones.


It doesn’t take a Zuckerberg to realize that these methods and goals could be applied to any modern field of endeavor. Are you involved in some way in management of your law firm or company? Do you want to stay competitive and remain relevant? Do you want to attract and retain the top creative and technical talent like Facebook, Google, and Apple do? If you stand still and keep the old management style and values, you will quickly fall far behind. You will lose the next generation of movers and shakers. The business and professional motivations to study the new management ethic are obvious. I hope you will at least read on and think about it, maybe even be bold enough to try it out.

Personal Apps?

Ralph Losey in Spring 2012There may also be applications of the Hacker Way to your personal life and code of conduct. Do you want your life to have an impact on the world? To have meaning? Do you want your life to embody ethical values that you are proud of? Do you share, or are you closed off, an iconoclastic island? Are you open to change, no matter how fast it may come? Can you take action, make decisions? Can you quickly implement your decisions? Are you efficient and productive? Do you dare to be bold, or just follow timid conventions of old?

I certainly will not try to answer these questions here, nor share the kind of personal fractal solutions that I try to fashion on a day-to-day basis; the iterations of action, observations, analysis, adjusted actions, repeat.  I just raise the questions to stimulate your personal thinking. Everyone has their own solution to the enigma that is life. There is no one right answer. We each have our own path on the Hacker Way. This essay will instead focus on the practical applications of Hacker Way to e-discovery management.


In e-discovery, like anything else, you have to focus and prioritize. You cannot do everything at once, at least not if you are going for impact. Scatter-brained is a recipe for failure. Any writer of appellate briefs will tell you that. Focus on the key issues if you want to persuade. Put aside the rest. You have to pick and choose your battles, your time, energy, and money. All tasks are not created equal. Some are more important than others. For instance, in e-discovery look for the smoking guns first, check out the ESI of the key custodians first. Do phased discovery and start your search and production in the data sectors and custodians most likely to give you the biggest bang for your buck. Most of the time with phased production you never need to go beyond the first phase. The low hanging fruit you find up front is usually more than adequate to try the case in a just, speedy and inexpensive manner.

In all kinds of project management, not just discovery, you should focus first on the problems and issues that could have the biggest impact, and then move on to secondary problems. A business manager, just like a wise project manager in an e-discovery review, knows what to focus on and when. Empty suits in the board room lack this kind of focus and ability to prioritize. Perhaps they just do not understand what is important, and what is not. Maybe they are too preoccupied with next quarter’s profits to see the big picture.

Back to e-discovery, the big picture, from the highest elevation, shows that the core problems are the high costs of e-discovery and the low skills of practitioners in using new technologies. You could say high costs and high risks, but I really think that the risk management problem is secondary to the skills problem. Attorneys trained in e-discovery have the skills to avoid the colossal mistakes that we read about in the court opinions every day.

To maximize impact e-discovery teams everywhere should focus on these two, costs and training. They should look for bold new ways to control costs and train attorneys. As discussed briefly in “The Hacker Way” – What e-Discovery Can Learn From Facebook’s Culture and Management, for me cost control means focusing on search, since review is the most expensive part of any production project. It also means building new aggressive culling methods, such as Bottom Line Driven Proportional Review and multimodal predictive coding assisted reviewSIRI and Pandora are the way of the future, not legions of low priced lawyers. The study of the non-profit Rand Corporation on e-discovery costs has reached the same conclusions. Where The Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery.

This is also an area for vendors to be bold. Vendors must lead the way not only in training, but by making advanced predictive coding type software less expensive than it is today. To be the kind of insanely great software the legal profession needs to prosper in these days of data deluge, the software also needs to be even more effective than it already is. Yes, we need cheaper and better. It can be done.

Vendors can attain the profits they need to keep feeding research and improving their products, and can lower prices at the same time, but they have to take a new approach. They have to focus more on volume. They have to stop thinking about predictive coding as a luxury only product where they make a lot of money on a few customers. Increased sales quantity does support lower prices. For example, if you make a thousand-dollars each on a software license, but do so on ten-thousand users, you will make $10,000,000. That is ten times as much profit as you would make selling licenses to one-hundred users with a ten-thousand dollars profit on each license ($1,000,000). Too many companies are still stuck in the low-volume, high-priced model.

You can attain the critical mass of higher sales, but to get there you have to lower prices and improve training. You have to do both. In-depth training and guidance will encourage greater utilization by the legal profession. The practice of law has always been just that, a practice. That is how we lawyers really learn anything, by doing. So although price is important, training is just as important, perhaps even more so because lawyers are involved, often subject matter expert lawyers at that.

minority_reportWe also need pricing models that are simplified and encourage all-in participation. The more data that goes into predictive coding, the better. That is how data analytics work. This also opens up a new field of application for search and review software, and with it a whole new customer base. By crunching ever larger datasets advanced data analytics can become part of corporate compliance. That means using advanced search software before litigation. It can even mean preventing litigation. With artificial intelligence enhanced data management the savvy employers and law firms of the future will be able to detect internal torts before they happen, or at least before they can cause real damage. Now that is real impact. The movie Minority Report is not as far-fetched as you might think when it comes to Big Data analysis.

Consider for instance Laura Kibbe’s article There’s More to TAR Than Litigation (LTN Aug, 2013) where she says:

Despite its cutting-edge reputation, on the document production front TAR is approaching mainstream. But what if it could also be used proactively in business to help manage information — or gain insight into problems before they occur? Using these tools to identify patterns of behavior, risk decision points, and control data expansion has the potential to not only save money, but also facilitate proper risk planning and training in the ordinary course of business in all industries.

Quite a few people I know are starting to think this way about the use of AI for corporate compliance and information management. This is a form of crime prevention, just like in Minority Report. It is also a question of business intelligence. It is only a matter of time before a truly bold CEO gets the message and designs software that can be customized to accomplish these Big Data tort-prevention, business efficiency ends, not to mention training in risk-control, pre-litigation usage methodologies. (You really cannot have one without the other.)

Laura’s article mentions one way it could be used in the pharmaceutical industry, a place where she is an SME. Her article shows how a drug company could search and analyze its data to prepare in advance for possible claims before a new drug is released. Lawsuits could be anticipated. Any failings could be corrected in advance of the new drug release.

There are many other possible applications. Fraud prevention and trade-secret theft come to mind. So too does prevention of discrimination, wrongful discharge, and retaliation. The potential applications are as endless as the law itself. It also goes beyond law, into general quality control and business efficiency. The potential impact of all of this is truly mind boggling.


This kind of new software and methods can make a huge impact on the law, indeed on all of society. But getting these new products and methods to market require fast action. First of all, the need is great. Secondly, the competition is great. There can be a large first to market advantage, but only if quality controls are observed and it is done right. There is a difference between fast and reckless; moreover quality is always critical.

Acting fast is second nature to most e-discovery practitioners by now. The 2006 Amendments to the Federal Rules of Civil Procedure put a premium on speed. We have now had seven years of experience with the need for speed. We all know you have to work fast to get your act together before the initial 26(f) conference. You have to be prepared to discuss and disclose your e-discovery plan, including your preferred format of production, preservation efforts, and plan for search and review. Evolving case law on litigation holds also requires you to act fast, to send out written notices quickly, to collect key ESI quickly.

Obviously most search, review, and production projects also require you to act very fast to meet tight time deadlines. How many files per hour can your CAR go, your Computer Assisted Review? You have got to be fast to succeed in e-discovery. Yet, at the same time, you must act reasonably and minimize mistakes. This means that you must have quality control methods built into your CARs. You have to know when to double-check your efforts. There are straightaways in e-discovery where you can go fast, such as irrelevancy culling, and there are curves, such as privilege review. You have to know when and where to slow down so you don’t go flying off the curves.

Some analyses and conversations need to happen quickly, right at the beginning of a case. Determination of key players and key player interviews and preservation instructions come to mind. So too do conversations with IT to suspend automatic deletions and old hard-drive recirculation. So many things in e-discovery are front-loaded that all who practice in this field are used to this kind of time pressure. We know how to act fast, yet tempered, and not hurried. We expect the same from our vendors. Most of the project managers of vendors seem capable of acting fast, but, alas, not so most of the empty suits they report to. Vendor CEOs: Stop Being Empty Suits & Embrace the Hacker Way.

Fast is also important in law firm management. Firms need to quickly get their e-discovery departments up to speed. They need to move fast to ramp up their attorneys’ skills. Gradualism is a recipe of failure. You cannot just wait until the next generation figures it out. Yes, it may be easier for the twenty-somethings to learn this new area of law, but do you really want them to do that by trial and error on your clients’ cases? Do your clients want that? Anyway, they won’t learn the right way to do things. They will stagger along without the benefit of senior advisers.

For a law firm to move fast, they really need to do what my law firm did, and others have done. They need to hire an outside attorney or attorneys who are already skilled. Then the senior experts can train and help others get up to speed, especially the young rock-star e-disco associates who otherwise practice e-discovery without adult supervision.

Vendors need to move fast too. Indeed, the pressure on vendors is even more intense because the competition is hotter. Speed and early adoption are all important in the world of e-discovery vendors. They cannot slow-poke around with yesterday’s technologies, such as keyword-only based search, or expensive on-site licenses. They need racing CARs. They need to move, and move quickly. They need to bring those prices down and science up, if they are going to win the race. They need advanced search with artificial intelligence type agents that the user trains, i.w. active machine learning based software. Take a look at Nokia’s and Research in Motion’s stock values as compared to Apple. Which team do you want to be on?

Fast does not mean you abandon quality control or appropriate beta testing. Apparently Facebook itself has had to learn this lesson. See Facebook Puts the Brakes on ‘The Hacker Way’. The Wired article by Ryan Tate points out that since going public Facebook has started slowing down product releases:

It’s testing new tools more thoroughly prior to release and then parsing goodies out slowly to help smoke out even more problems. Facebook’s move toward greater testing is a sign of maturation at the company…

I agree this is a sign of maturation, but I do not agree with Ryan Tate that this means Facebook has put the brakes on the Hacker Way. Tate’s article misstates the Hacker Way as being built around the adage “move fast and break things.” But as Mark Zuckerberg’s Letter to Investors shows, that is only a small part of this new work ethic. Moreover, I do not think Facebook has backed off one bit, in fact the speed of product development after going public has increased dramatically. As Tate’s article admits:

In some regards, Facebook is moving faster than it ever has before. Since going public, it has launched a search engine, a mobile “operating system,” a camera app, a pages app, a “poke” app, an app store, an ad exchange, an online store, a gift card, a video sharing system, at least two major news feed updates, and plenty more. The teenaged Zuckerberg, in full hacker glory as a Harvard underclassman, would have approved of the breakneck product release pace.

Fast does not mean reckless. But the more skilled you become, the faster you can move and still remain safe, still remain within acceptable quality control parameters. Knowing just how fast you can go is an artifact of experience, of age, and it looks like Facebook is gaining that experience.

Steve_Jobs_IPhoneOne careful reader pointed out the Tate article in a comment to my earlier blog “The Hacker Way” – What the e-Discovery Industry Can Learn From Facebook’s Management Ethic, which I appreciate. He also criticized the Hacker Way as promoting, or at least tolerating, age discrimination, and said this was rampant in Silicon Valley. This may or may not be going on at high-tech start-ups. I hope not. But I do know if has nothing to do with the Hacker Way ethic, at least not as this old hacker understands it. Not only is age discrimination illegal, it goes against all of the core values of the Hacker Way, which, above all, is built on the importance of values. The Hacker Way is a meritocracy, no matter what the age or color of a person. This is not a youth culture movement, nor an exclusive enclave of the young. It has been around since the sixties, and its primary gurus now are geeks of my age or older. The Yoda of Hacker Way, Steve Wozniak, is hardly a kid. And many think, myself included, that Steve Jobs was at his best after he turned fifty.

Mark Zuckerberg may still be young, but he has learned fast, and as Darth Vader said: The Force is strong with this one. When Zuckerberg and his company gain maturity and wisdom from experience, they will be an even greater power to change the world for the better. I just hope they remain true to the Hacker Ethic and remain value driven. As Zuckerberg put it:

Facebook was not originally created to be a company. It was built to accomplish a social mission — to make the world more open and connected. . . .  Simply put: we don’t build services to make money; we make money to build better services.

The Hacker Way is an ideal, one that has been inspiring to many in the high-tech world for many decades. It is not an excuse to discriminate, nor a credo that sacrifices quality for mere speed. Above all else it is a value driven work ethic, a new model for corporate leadership. There is far more to work than just making money, and the companies that realize that are well along the path of the Hacker Way.

To be continued ….

“The Hacker Way” – What the e-Discovery Industry Can Learn From Facebook’s Management Ethic

August 18, 2013

Facebook’s regulatory filing for its initial public stock offering included a letter to potential investors by 27 year old billionaire Mark Zuckerberg. The letter describes the culture and approach to management that he follows as CEO of Facebook. Zuckerberg calls it the Hacker Way. Mark did not invent this culture. In a way, it invented him. It molded him and made him and Facebook what they are today. This letter reveals the secrets of Mark’s success and establishes him as the current child prodigy of the Hacker Way.

Too bad most of the CEOs in the e-discovery industry have not read the letter, much less understand how Facebook operates. They are clueless about the management ethic it takes to run a high-tech company.

An editorial in Law Technology News explains why I think most of the CEOs in the e-discovery software industry are just empty suits. They do not understand modern software culture. They think the Hacker Way is a security threat. They are incapable of creating insanely great software. They cannot lead with the kind of inspired genius that the legal profession now desperately needs from its software vendors to survive the data deluge. From what I have seen most of the pointy-haired management types that now run e-discovery software companies should be thrown out. They should be replaced with Hacker savvy management before their once proud companies go the way of the Blackberry. The LTN article has more details on the slackers in silk suits. Vendor CEOs: Stop Being Empty Suits & Embrace the Hacker Way. This essay, a partial rerun from a prior blog, gives you the background on Facebook’s Hacker Way.

Hacker History

The Hacker Way tradition and way of thinking has been around since at least the sixties. It has little or nothing to do with illegal computer intrusions. Moreover, to be clear, NSA leaker Edward Snowden is no hacker. All he did was steal classified information, put it on a thumb drive, meet the press, and then flea the country, to communist dictatorships no less. That has nothing to do with the Hacker Way and everything to do with politics.

The Hacker Way – often called the hacker ethic – has nothing to do with politics. It did not develop in government like the Internet did, but in the hobby of model railroad building and MIT computer labs. This philosophy is well-known and has influenced many in the tech world, including the great Steve Jobs (who never fully embraced its openness doctrines), and Steve’s hacker friend, Steve Wozniak, the laughing Yoda of the Hacker Way. The Hacker approach is primarily known to software coders, but can apply to all kinds of work. Even a few lawyers know about the hacker work ethic and have been influenced by it.

Who is Mark Zuckerberg?

We have all seen a movie version of Mark Zuckerberg in The Social Network, who, by the way, will still own 56.9% voting control of Facebook after the public offering later this year. But who is Mark Zuckerberg really? His Facebook page may reveal some of his personal life and ideas, but how did he create a Hundred Billion Dollar company so fast?

How did he change the world at such a young age? There are now over 850 million people on Facebook with over 100 billion connections. On any one day there are over 500 million people using Facebook. These are astonishing numbers. How did this kind of creative innovation and success come about? What drove Mark and his hacker friends to labor so long, and so well? The letter to investors that Mark published  gives us a glimpse into the answer and a glimpse into the real Mark Zuckerberg. Do I have your full attention yet?

The Hacker Way philosophy described in the investor letter explains the methods used by Mark Zuckerberg’s and his team to change the world. Regardless of who Mark really is, greedy guy or saint (or like Steve Jobs, perhaps a strange combination of both), Mark’s stated philosophy is very interesting. It has applications to anyone who wants to change the world, including those of us trying to change the law and e-discovery.

Hacker Culture and Management

Mark’s letter to investors explains the unique culture and approach to management inherent in the Hacker Way that he and Facebook have adopted.

As part of building a strong company, we work hard at making Facebook the best place for great people to have a big impact on the world and learn from other great people. We have cultivated a unique culture and management approach that we call the Hacker Way.

The word `hacker’ has an unfairly negative connotation from being portrayed in the media as people who break into computers. In reality, hacking just means building something quickly or testing the boundaries of what can be done. Like most things, it can be used for good or bad, but the vast majority of hackers I’ve met tend to be idealistic people who want to have a positive impact on the world.

The Hacker Way is an approach to building that involves continuous improvement and iteration. Hackers believe that something can always be better, and that nothing is ever complete. They just have to go fix it — often in the face of people who say it’s impossible or are content with the status quo.

Hackers try to build the best services over the long term by quickly releasing and learning from smaller iterations rather than trying to get everything right all at once. To support this, we have built a testing framework that at any given time can try out thousands of versions of Facebook. We have the words `Done is better than perfect’ painted on our walls to remind ourselves to always keep shipping.

Hacking is also an inherently hands-on and active discipline. Instead of debating for days whether a new idea is possible or what the best way to build something is, hackers would rather just prototype something and see what works. There’s a hacker mantra that you’ll hear a lot around Facebook offices: `Code wins arguments.’

Hacker culture is also extremely open and meritocratic. Hackers believe that the best idea and implementation should always win — not the person who is best at lobbying for an idea or the person who manages the most people.

To encourage this approach, every few months we have a hackathon, where everyone builds prototypes for new ideas they have. At the end, the whole team gets together and looks at everything that has been built. Many of our most successful products came out of hackathons, including Timeline, chat, video, our mobile development framework and some of our most important infrastructure like the HipHop compiler.

To make sure all our engineers share this approach, we require all new engineers — even managers whose primary job will not be to write code — to go through a program called Bootcamp where they learn our codebase, our tools and our approach. There are a lot of folks in the industry who manage engineers and don’t want to code themselves, but the type of hands-on people we’re looking for are willing and able to go through Bootcamp.

So sayst Zuckerberg. Hands-on is the way.

Application of the Hacker Way to e-Discovery

E-discovery needs that same hands-on approach. E-discovery lawyers need to go through bootcamp too, even if they primarily just supervise others. Even senior partners should go, at least if they purport to manage and direct e-discovery work. Partners should, for example, know how to use the search and review software themselves, and from time to time, do it, not just direct junior partners, associates, and contact lawyers. You cannot manage others at a job unless you can actually do the job yourself. That is the hacker key to successful management.

Also, as I often say, to be a good e-discovery lawyer, you have to get your hands dirty in the digital mud. Look at the documents, don’t just theorize about them or what might be relevant. Bring it all down to earth. Test your keywords, don’t just negotiate them. Prove your search concept by the metrics of the search results. See what works. When it doesn’t, change the approach and try again. Plus, in the new paradigm of predictive coding, where keywords are just a start, the SMEs must get their hand dirty. They must use the software to train the machine. That is how the artificial intelligence aspects of predictive coding work. The days of hands-off theorists is over. Predictive coding work is the penultimate example of code wins arguments.

Iteration is king of ESI search and production. Phased production is the only way to do e-discovery productions. There is no one final, perfect production of ESI. As Voltaire said, perfect is the enemy of  good. For e-discovery to work properly it must be hacked. It needs lawyer hackers. It needs SMEs that can train the machine on what is relevant, on what evidence must be found to do justice. Are you up to the challenge?

Mark’s Explanation to Investors of the Hacker Way of Management

Mark goes on to explain in his letter to investors how the Hacker Way translates into the core values for Facebook management.

The examples above all relate to engineering, but we have distilled these principles into five core values for how we run Facebook:

Focus on Impact

If we want to have the biggest impact, the best way to do this is to make sure we always focus on solving the most important problems. It sounds simple, but we think most companies do this poorly and waste a lot of time. We expect everyone at Facebook to be good at finding the biggest problems to work on.

Move Fast

Moving fast enables us to build more things and learn faster. However, as most companies grow, they slow down too much because they’re more afraid of making mistakes than they are of losing opportunities by moving too slowly. We have a saying: “Move fast and break things.” The idea is that if you never break anything, you’re probably not moving fast enough.

Be Bold

Building great things means taking risks. This can be scary and prevents most companies from doing the bold things they should. However, in a world that’s changing so quickly, you’re guaranteed to fail if you don’t take any risks. We have another saying: “The riskiest thing is to take no risks.” We encourage everyone to make bold decisions, even if that means being wrong some of the time.

Be Open

We believe that a more open world is a better world because people with more information can make better decisions and have a greater impact. That goes for running our company as well. We work hard to make sure everyone at Facebook has access to as much information as possible about every part of the company so they can make the best decisions and have the greatest impact.

Build Social Value

Once again, Facebook exists to make the world more open and connected, and not just to build a company. We expect everyone at Facebook to focus every day on how to build real value for the world in everything they do.


Applying the Hacker Way of Management to e-Discovery


Focus on Impact

Law firms, corporate law departments, and vendors need to focus on solving the most important problems, the high costs of e-discovery and the lack of skills. The cost problem primarily arises from review expenses, so focus on that. The way to have the biggest impact here is to solve the needle in the haystack problem. Costs can be dramatically reduced by improving search. In that way we can focus and limit our review to the most important documents. This incorporates the search principles of Relevant Is Irrelevant and 7±2 that I addressed in Secrets of Search, Part III. My own work has been driven by this hacker focus on impact and led to my development of Bottom Line Driven Proportional Review and multimodal predictive coding search methods. Other hacker oriented lawyers and technologists have developed their own methods to give clients the most bang for their buck.

The other big problem in e-discovery is that most lawyers do not know how to do it, and so they avoid it altogether. This in turn drives up the costs for everyone because it means the vendors cannot yet realize large economies of scale. Again, many lawyers and vendors understand that lack of education and skill sets is a key problem and are focusing on it.

Move Fast

This is an especially challenging dictate for lawyers and law firms because they are overly fearful of making mistakes, of breaking things as Facebook puts it. They are afraid of looking bad and malpractice suits. But the truth is, professional malpractice suits are very rare in litigation. Such suits happen much more often in other areas of the law, like estates and trusts, property, and tax. As far as looking bad goes, they should be more afraid of the bad publicity from not moving fast enough, which is a much more common problem, one that we see daily in sanctions cases. Society is changing fast, if you aren’t too, you’re falling behind.

The problem of slow adoptions also afflicts the bigger e-discovery vendors who often drown in bureaucracy and are afraid to make big decisions. That is why you see individuals like me starting an online education program, while the big boys keep on debating. I have already changed my e-Discovery Team Training program six times since it went public almost two years ago. `Code wins arguments.’ Lawyers must be especially careful of the thinking Man’s disease, paralysis by analysis, if they want to remain competitive.

A few lawyers and e-discovery vendors understand this hacker maxim and do move fast. A few vendors appreciate the value of getting there first, but fewer law firms do. It seems hard for most of law firm management to understand that the risks of lost opportunities are far more dangerous and certain than the risks of a making a few mistakes along the way. The slower, too conservative law firms are already starting to see their clients move business to the innovators, the few law firms who are moving fast. These firms have more than just puffed-up websites claiming e-discovery expertise, they have dedicated specialists and, in e-discovery at least, they are now far ahead of the rest of the crowd. Will the slow and timid ever catch up, or will they simply dissolve like Heller Ehrman, LLP?

Be Bold

This is all about taking risks and believing in your visions. It is directly related to moving fast and embracing change; not for its own sake, but to benefit your clients. Good lawyers are experts in risk analysis. There is no such thing as zero-risk, but there is certainly a point of diminishing returns for every litigation activity that is designed to control risks. Good lawyers know when enough is enough and constantly consult with their clients on cost benefit analysis. Should we take more depositions? Should we do another round of document checks for privilege? Often lawyers err on the side of caution, without consulting with their clients on the costs involved. They follow an overly cautious approach wherein the lawyers profit by more fees. Who are they really serving when they do that?

The adoption of predictive coding provides a perfect example of how some firms and vendors understand technology and are bold, and others do not and are timid. The legal profession is like any other industry, it rewards the bold, the innovators who create new legal methods and law for the benefit of their clients. What client wants a wimpy lawyer who is over-cautious and just runs up bills? They want a bold lawyer, who at the same time remains reasonable, and involves them in the key risk-reward decisions inherent in any e-discovery project.

Be Open

In the world of e-discovery this is all about transparency and strategic lowering of the wall of work product. Transparency is a proven method for building trust in discovery. Select disclosure is what cooperation looks like. It is what is supposed to happen at Rule 26(f) conferences, but seldom does. The attorneys that use openness as a tool are saving their clients needless expense and disputes. They are protecting them from dreaded redos, where a judge finds that you did a review wrong and requires you to do it again, usually under very short timelines. There are limits to openness of course, and lawyers have an inviolate duty to preserve their client’s secrets. But that still leaves room for disclosure of information on your own methods of search and review when doing so will serve your client’s interests.

Build Social Value 

The law is not a business. It is a profession. Lawyers and law firms exist to do justice. That is their social value. We should never lose sight of that in our day-to-day work. Vendors who serve the legal profession must also support these lofty goals in order to provide value. In e-discovery we should serve the prime directive, the dictates of Rule 1, for just, speedy, and inexpensive litigation. We should focus on legal services that provide that kind of social value. Profits to the firm should be secondary. As Zuckerberg said in the letter to potential investors:

Simply put: we don’t build services to make money; we make money to build better services.

This social value model is not naive, it works. It eventually creates huge financial rewards, as a number of e-discovery vendors and law firms are starting to realize. But that should never be the main point.


Facebook and Mark Zuckerberg should serve as an example to everyone, including e-discovery lawyers and vendors. I admit it is odd that we should have to turn to our youth for management guidance, but you cannot argue with success. We should study Zuckerberg’s 21st Century management style and Hacker Way philosophy. We can learn from its tremendous success. Zuckerberg and Facebook have proven that these management principles work in the digital age. It is true if it works. That is the pragmatic tradition of American philosophy. We live in fast changing times. Embrace change that works. As the face of Facebook says: “The riskiest thing is to take no risks.”

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