One of the largest cases in the U.S. today is a consolidated group of price-fixing cases in District Court in Chicago. In Re Broiler Chicken Antitrust Litigation, 290 F. Supp. 3d 772 (N.D. Ill. 2017) (order denying motions to dismiss and discussing the case). The consolidated antitrust cases involve allegations of a wide spread chicken price-fixing. Big Food Versus Big Chicken: Lawsuits Allege Processors Conspired To Fix Bird Prices (NPR 2/6/18).
The level of sales and potential damages are high. For instance, in 2014 the sales of broiler chickens in the U.S. was $32.7 Billion. That’s sales for one year. The classes have not been certified yet, but discovery is underway in the consolidated cases.
The Broiler Chicken case is not only big money, but big e-discovery. A Special Master (Maura Grossman) was appointed months ago and she developed a unique e-discovery validation protocol order for the case. See: TAR for Smart Chickens, by John Tredennick and Jeremy Pickens that analyzes the validation protocol.
Maura was not involved in the latest discovery dispute where, Agri Stats, one of many defendants, claimed a request for production was too burdensome as to it. The latest problem went straight to the presiding Magistrate Judge Jeffrey T. Gilbert who issued his order on July 26, 2018. In re Broiler Chicken Antitrust Litig., 2018 WL 3586183 (N.D. Ill. 7/26/18).
Agri Stats had moved for a protective order to limit an email production request. Agri Stats claimed that the burden imposed was not proportional because it would be too expensive. Its lawyers told Judge Gilbert that it would cost between $1,200,000 and $1,700,00 to review the email using the keywords negotiated.
Fantasy Hearing
I assume that there were hearings and attorney conferences before the hearings. But I do not know that for sure. I have not seen a transcript of the hearings with Judge Gilbert. All we know is that defense counsel told the judge that under the keywords selected the document review would cost between $1,200,000 and $1,700,000, and that they had no explanation on how the cost estimate was prepared, nor any specifics as to what it covered. Although I was not there, after four decades of doing this sort of work, I have a pretty good idea of what was or might have been said at the hearing.
This representation of million dollar costs by defense counsel would have gotten the attention of the judge. He would naturally have wanted to know how the cost range was calculated. I can almost hear the judge say from the bench: “$1.7 Million Dollars to do a doc review. Yeah, ok. That is a lot of money. Why so much counsel? Anyone?” To which the defense attorneys said in response, much like the students in Ferris Beuller’s class:
“. . . . . .”
Yes. That’s right. They had Nothing. Just Voodoo Economics
Well, Judge Gilbert’s short opinion makes it seem that way. In re Broiler Chicken Antitrust Litig., 2018 WL 3586183 (N.D. Ill. 7/26/18).
If a Q&A interchange like this happened, either in a phone hearing, or in person, then the lawyers must have said something. You do not just ignore a question by a federal judge. The defense attorneys probably did a little hemming and hawing, conferred among themselves, and then said something to the judge like: “We are not sure how those numbers were derived, $1.2M to $1.5M, and will have to get back to you on that question, Your Honor.” And then, they never did. I have seen this kind of thing a few times before. We all try to avoid it. But it is even worse to make up a false story, or even present an unverified story to the judge. Better to say nothing and get back to the judge with accurate information.
Discovery Order of July 26, 2018
Here is a quote from Judge Gilbert’s Order so you can read for yourself the many questions the moving party left unanswered (detailed citations to record removed; graphics added):
Agri Stats represents that the estimated cost to run the custodial searches EUCPs propose and to review and produce the ESI is approximately $1.2 to $1.7 million. This estimated cost, however, is not itemized nor broken down for the Court to understand how it was calculated. For example, is it $1.2 to $1.7 million to review all the custodial documents from 2007 through 2016? Or does this estimate isolate only the pre-October 2012 custodial searches that Agri Stats does not want to have to redo, in its words? More importantly, Agri Stats also admits that this estimate is based on EUCPs’ original proposed list of search terms. But EUCPs represent (and Agri Stats does not disagree) that during their apparently ongoing discussions, EUCPs have proposed to relieve Agri Stats of the obligation to produce various categories of documents and data, and to revise the search terms to be applied to data that is subject to search. Agri Stats does not appear to have provided a revised cost estimate since EUCPs agreed to exclude certain categories of documents and information and revised their search terms. Rather, Agri Stats takes the position that custodial searches before October 3, 2012 are not proportional to the needs of the case — full stop — so it apparently has not fully analyzed the cost impact of EUCPs’ revised search terms or narrowed document and data categories.
The Court wonders what the cost estimate is now after EUCPs have proposed to narrow the scope of what they are asking Agri Stats to do. (emphasis added) EUCPs say they already have agreed, or are working towards agreement, that 2.5 million documents might be excluded from Agri Stats’s review. That leaves approximately 520,000 documents that remain to be reviewed. In addition, EUCPs say they have provided to Agri Stats revised search terms, but Agri Stats has not responded. Agri Stats says nothing about this in its reply memorandum.
EUCPs contend that Agri Stats’s claims of burden and cost are vastly overstated. The Court tends to agree with EUCPs on this record. It is not clear what it would cost in either time or money to review and produce the custodial ESI now being sought by EUCPs for the entire discovery period set forth in the ESI Protocol or even for the pre-October 3, 2102 period. It seems that Agri Stats itself also does not know for sure what it would have to do and how much it would cost because the parties have not finished that discussion. Because EUCPs say they are continuing to work with Agri Stats to reduce what it must do to comply with their discovery requests, the incremental burden on what Agri Stats now is being asked to do is not clear.
For all these reasons, Agri Stats falls woefully short of satisfying its obligation to show that the information [*10] EUCPs are seeking is not reasonably accessible because of undue burden or cost.
Estimations for Fun and Profit
In order to obtain a protective order you need to estimate the costs that will likely be involved in the discovery from which you seek protection. Simple. Moreover, it obviously has to be a reasonable estimate, a good faith estimate, supported by the facts. The Brolier Chicken defendant, Agri Stats, came up with an estimate. They got that part right. But then they stopped. You never do that. You do not just throw up a number and hope for the best. You have to explain how it was derived. Blushing at any price higher than that is not a reasonable explanation, but is often honest.
Be ready to explain how you came up with the cost estimate. To break down the total into its component parts and allow the “Court to understand how it was calculated.” Agri Stats did not do that. Instead, they just used a cost estimate of between $1.2 to $1.7 million. So of course Agri Stats’ motion for protective order was denied. The judge had no choice because no evidence to support the motion was presented, neither factual or expert evidence. There was no need for Judge Gilbert to go into the secondary questions of whether expert testimony was also needed and whether it should be under Rule 702. He got nothing remember. No explanation for the $1.7 Million.
The lesson of the latest discovery order in Broiler Chicken is pretty simple. In re Broiler Chicken Antitrust Litig., 2018 WL 3586183 (N.D. Ill. 7/26/18). Get a real cost estimate from an expert. The expert needs to know and understand document review, search and costs of review. They need to know how to make reasonable search and retrieval efforts. They also need to know how to make reliable estimates. You may need two experts for this, as not all have expertise in both fields, but they are readily available. Many can even talk pretty well too, but not all! Seriously, everybody knows we are the most fun and interesting lawyer subgroup.
The last thing to do is skimp on an expert and just pull out a number from your hat (or your vendor’s hat) and hope for the best.
This is federal court, not a political rally. You do not make bald assertions and leave the court wondering. Facts matter. Back of the envelope type guesses are not sufficient, especially in a big case like Broiler Chicken. Neither are guesstimates by people who do not know what they are doing. Make disclosure and cooperate with the requesting party to reach agreement. Do not just rush to the courthouse hoping to dazzle with smoke and mirrors. Bring in the experts. They may not dazzle, but they can get you beyond the magic mirrors.
Case Law Background
Judge Paul S. Grewal, who is now Deputy G.C. of Facebook, said quoting The Sedona Conference in Vasudevan: “There is no magic to the science of search and retrieval: only mathematics, linguistics, and hard work.” Vasudevan Software, Inc. v. Microstrategy Inc., No. 11-cv-06637-RS-PSG, 2012 US Dist LEXIS 163654 (ND Cal Nov 15, 2012) (quoting The Sedona Conference, Best Practices Commentary on the Use of Search and Information and Retrieval Methods in E-Discovery, 8 Sedona Conf. J. 189, 208 (2007). There is also no magic to the art of estimation, no magic to calculating the likely range of cost to search and retrieve the documents requested. Judge Grewal refused to make any decision in Vasudevan without expert assistance, recognizing that this area is “fraught with traps for the unwary” and should not be decided on mere arguments of counsel.
Judge Grewal did not address the procedural issue of whether Rule 702 should govern. But he did cite to Judge Facciola’s case on the subject, United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008). Here Judge Facciola first raised the discovery expert evidence issue. He not only opined that experts should be used, but that the parties should follow the formalities of Evidence Rule 702. That governs things such as whether you should qualify and swear in an expert and follow otherwise follow Rule 702 on their testimony. I discussed this somewhat in my earlier article this year, Judge Goes Where Angels Fear To Tread: Tells the Parties What Keyword Searches to Use.
Judge Facciola in O’Keffe held that document review issues require expert input and that this input should be provided with all of the protections provided by Evidence Rule 702.
Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence. Accordingly, if defendants are going to contend that the search terms used by the government were insufficient, they will have to specifically so contend in a motion to compel and their contention must be based on evidence that meets the requirements of Rule 702 of the Federal Rules of Evidence.
Conclusion
In the Boiler Chicken Antitrust Order of July 27, 2018, a motion for protective order was denied because of inadequate evidence of burden. All the responding party did was quote a price-range, a number presumably provided by an expert, but there was no explanation. More evidence was needed, both expert and fact. I agree that generally document review cost estimation requires opinions of experts. The experts need to be proficient in two fields. They need to know and understand the science of document search and retrieval and the likely costs for these services for a particular set of data.
Although all of the formalities and expense of compliance with Evidence Rule 702 may be needed in some cases, it is probably not necessary in most. Just bring your expert to the attorney conference or hearing. Yes, two experts may well disagree on some things, probably will, but the areas of agreement are usually far more important. That in turn makes compromise and negotiation far easier. Better leave the technical details to the experts to sort out. That follows the Rule 1 prime directive of “just, speedy and inexpensive.” Keep the trial lawyers out of it. They should instead focus and argue on what the documents mean.
Posted by Ralph Losey 
The most complete set of AI ethics developed to date, the 
Other groups are concerned with AI ethics and regulation, including research guidelines. See the 
The proposed first principle is good, but the wording? Not so much. The goal of AI research should be to create not undirected intelligence, but beneficial intelligence. This is a double-negative English language mishmash that only an engineer could love. Here is one way this principle could be better articulated:
The restriction to beneficial intelligence is somewhat controversial, but the other side of this first principle is not. Namely, that research should 
Still, what about autonomous weapons? Is research into advanced AI in this area beneficial? Are military defense capabilities beneficial? Pro-security? Is the slaughter of robots not better than the slaughter of humans? Could robots be more ethical at “soldiering” than humans? As attorney 
The second principle of Funding is more than an enforcement mechanism for the first, that you should only fund beneficial AI. It is also a recognition that ethical work requires funding too. This should be every lawyer’s favorite AI ethics principle. Investments in AI should be accompanied by funding for research on ensuring its beneficial use, including thorny questions in computer science, economics, law, ethics, and social studies. The principle then adds a list of five bullet-point examples.
The economic issues raised by the second example are very important: How can we grow our prosperity through automation while maintaining people’s resources and purpose? We do not want a system that only benefits the top one percent, or top ten percent, or whatever. It needs to benefit everyone, or at least try to. Also see Asilomar Principle Fifteen: Shared Prosperity: The economic prosperity created by AI should be shared broadly, to benefit all of humanity.
We have seen the tension between “speedy” and “inexpensive” on the one hand, and “just” on the other in Rule One of the Federal Rules of Civil Procedure and e-discovery. When applied using active machine learning a technical solution was attained to these competing goals. The predictive coding methods we developed allowed for both precision (“speedy” and “inexpensive”) and recall (“just”). Hopefully this success can be replicated in other areas of the law where machine learning is under proportional control by experienced human experts.
This principle is fairly straightforward, but will in practice require a great deal of time and effort to be done right. A constructive and healthy exchange between AI researchers and policy-makers is necessarily a two-way street. It first of all assumes that policy-makers, which in most countries includes government regulators, not just industry, have a valid place at the table. It assumes some form of government regulation. That is anathema to some in the business community who assume (falsely in our opinion) that all government is inherently bad and essentially has nothing to contribute. The countervailing view of overzealous government controllers who just want to jump in, uninformed, and legislate, is also discouraged by this principle. We are talking about a healthy exchange.
It does not take an AI to know this kind of give and take and information sharing will involve countless meetings. It will also require a positive healthy attitude between the two groups. If it gets bogged down into an adversary relationship, you can multiply the cost of compliance (and number of meetings) by two or three. If it goes to litigation, we lawyers will smile in our tears, but no one else will. So researchers, you are better off not going there. A constructive and healthy exchange is the way to go.
The need for a good culture applies in spades to the research community itself. The Fourth Principal states: A culture of cooperation, trust, and transparency should be fostered among researchers and developers of AI. This favors the open source code movement for AI, but runs counter to the trade-secret business models of many corporations. See Eg.:
The Fifth Principle is a tough one, but very important: Teams developing AI systems should actively cooperate to avoid corner-cutting on safety standards. Moving fast and breaking things may be the mantra of Silicon Valley, but the impact of bad AI could be catastrophic. Bold is one thing, but reckless is quite another. In this area of research there may not be leisure for constant improvements to make things right. 
Our addiction to smart phone and social media has led to unintended negative consequences. We are in danger of becoming vapid carbon-based consumption machines. We are already extremely vulnerable to foreign power social manipulation, to propagandists and hostile mind-meddlers of all kinds. We are living in very dangerous times where information floods and confuses us all. 
This is a rare blog where I write about someone else’s article – a blog about a blog. To make this more bizarre, the blog I’m moved to write about is a blog about a book, which I have been meaning to write about myself. So yes, this is a blog about a blog about a book that was almost a blog. But I get ahead of myself with this useless metadata. The blog that caught my interest is called: 
The inspiration of Arianna’s blog is the latest popular book in AI, one that I am also quite enamored by, 
Max Tegmark, the founder of the 
This danger of information without knowledge or wisdom is one of the themes in my theory of the impact of technology on society. 
As I said before, and feel compelled to say again, this is a serious issue that requires immediate action, if not voluntarily by social media providers, such as Facebook and Twitter, then by law. 
We cannot afford to have another election hijacked by secret AIs posing as real people, either on Twitter, Facebook or elsewhere. Legal changes under the current Administration are unlikely, so too are real changes by big corporate America. That means it is up to us, everyday citizens, to be vigilant against the AI enhanced propaganda. Do not count on big government to save you. Count on the Constitution and our legal system. That branch of the government is still functional and honest. Count on yourself, your inner wisdom. Self reliance is the American way. Trust that smart, skeptical Americans are a majority and will ultimately prevail over all would be dictators, imbeciles and geniuses alike. But verify. Exercise your rights, including especially your rights of free speech, assembly and to vote. Never give up and sink into mere vapid carbon-based consumption machines.
Arianna, who is herself a master of social influence and media, understands this danger all too well. Again, to 
The Founding Fathers enacted the Bill of Rights to protect U.S. citizens from our own government. Distrust of government is hardwired into our Constitution. Follow the Constitution. Fight oppression. If you have sworn an oath to uphold the Constitution, including the all-important Bill of Rights, as I have, then be true to your oath. Trust no one. Including especially the government and its political leaders. That is the wisdom of our Founding Fathers. The same applies in spades to what foreign governments say or do, especially the dictatorships that we see in Russia and China, to name just a few. Do not count on the FBI to protect you. Be skeptical. Verify everything. Demand proof. Get to the truth. The same distrust should apply to all big organizations, including the new technology companies. Do not click away your soul. You are more than a machine. Fight addiction to social media.
The problem is ours to solve, both by AI Ethics principles and law, but also by our everyday conduct. Again, to quote the concluding words to Arianna’s article 
Arguably the most important information resource of 
Although Nicolas Economou is an e-discovery search pioneer and past Sedona participant, I do not know him. I was, of course, familiar with H5’s work as one of the early TREC Legal Track pioneers, but I had no idea Economou was also involved with AI ethics. Interestingly, I recently learned that another legal search expert, 
The latest attempt at articulating AI Ethics principles comes from 
