“Courts Are Being Asked To Interpret Emojis”

zipper face-side

If that quote, from a presentation by Robert Cruz and Jonathan Rudolph of Actiance, Inc at LegalWeek’s CLE-eligible session entitled “Social Mobile Cloud – Welcome to the Next Generation of eDiscovery,” doesn’t scare the living daylights out of you, try this one: “People are abandoning any semblance of restraint.”

In a very well-attended session, Actiance presented the uncomfortable truth that the challenge facing information governance people, and eDiscovery attorneys following in their footsteps, is using the communication tools clients want to use (and are going to use) while still maintaining discovery and regulatory compliance.  According to them, there are forty to fifty communication systems used on a daily basis in the banking industry alone.  In the right case, counsels’ nightmare is to know what’s going on in each and every one of them, even though it is quite possible some are being used without the knowledge and consent of the employer.

Whereas a strict information governance policy with respect to social media MUST be implemented AND updated frequently in response to developing technologies, that that in and of itself is not going to fully protect a corporation from potentially nasty surprises and eDiscovery counsel simply must ferret out what is being used by whom and how – or if – the data can be collected.

So, not only are people (clients) using symbols to communicate, but they are freely communicating about anything under the sun.  Sleep well, counsel, sleep well.

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Quick: What’s a 502(d) Order* and Why Do You Want One?

legal week 2018 IMG_3642

If you weren’t at LegalWeek in Manhattan, these are the people getting at least a step or two ahead of you, taking their seats in the ballroom of the Midtown Hilton as they waited for the distinguished panel of jurists, moderated by Patrick Ott of Shook, Hardy & Bacon, LLP, to take the stage for the Keynote, The ESI of Today & The ESI of Tomorrow, including:

  • The Honorable William Matthewman
  • The Honorable Xavier Rodriguez
  • The Honorable Joy Conti Flowers
  • The Honorable Andrew Peck

It was quite a surprise to hear that less than a quarter of the attorneys responding to an informal (hands-up) survey use this Get-Out-Of-Jail-Free card regarding the inadvertent waiver of privilege on a regular basis, or even knew why they would want to, with less than that realizing that local rules can impact its application.  Judge Peck, who disclosed he is retiring from the bench soon, even provides a form order to make it extra simple to gain the protection in his jurisdiction.

With how fast technology evolves, the rules will always lag behind, but they still apply, and often work to your advantage, if you know enough to use them.

*FRE 502(d):  Controlling Effect of a Court Order. A federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court — in which event the disclosure is also not a waiver in any other federal or state proceeding.


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Are You Going?


Legalweek New York is rapidly approaching and is not to be missed by anyone seriously interested in how technology is affecting the legal world, from document review to complex litigation decision making.  If you are not up-to-date on it, you can only hope your adversary isn’t either.

Registration is now available at www.legalweekshow.com

You owe it to yourself, your client, or your firm to attend!

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“Natural” Selection and the Evolution of Artificial Intelligence


Part of the proof published by Yining Wang, et al, in an article entitled A Theoretical Anlysis of NDCG published in the Journal of Machine Learning Research.  NDCG (normalized discounted cumulative gain) is somehow used in the ranking of artifical intelligence systems ….

The concluding keynote session on the third and last day of ALM Media’s LegalWeek, the Experience, How AI Benefits People and Society and Its Legal Challenges, Opportunities, and Ethics, was quite thought-provoking. The panel was excellent; high energy and very knowledgeable, but – and it was only because the hour flew by – they did not get around to discussing the ethics of it all.


L to R: Zev Eigen, Andrew Arruda, Natalie Pierce, Brian Kuhn, Ray Thomas

For many of us, this is key, and what makes artificial intelligence scary. Who is going to teach these machines ethics, and, frankly, can ethics really be taught to a machine?  We don’t understand equations like the ones above, and we are never going to understand them, so how can we know?

My skepticism comes from my background in evolutionary biology and its lesson that life moves forward on what works today. Apart from (some) humans, life doesn’t use long-term planning much and certainly ethics per se are lacking. Altruism is rare in the animal kingdom and not fully understood even after decades of study because it doesn’t really make sense; why would I sacrifice myself for your benefit unless there is actually something in it for me after all, in which case it isn’t really altruistic.

Humans have only been able to become truly selfless because our intellect allows us to recognize a Greater Good and to derive some form of satisfaction in serving it. That shy smile of gratitude might work for us, being susceptible to warm fuzzies, but I can already hear the descendants of Watson chuckling in their sleek lairs. Machines are not going to learn altruism.

One need only look at health care in this country to see the problem. It is so expensive that health insurance can only work well if we all pay into it throughout the healthy portions of our lives because only that will build reserves adequate to pay for the care we are likely to require if we’re not lucky enough to drop dead out of the blue and yet we exploded in rage when paying into it became mandated. I’d love to meet the algorithm asked to approve the $100,000+ my 88-year-old father’s 3-day hospitalization cost – would the fact that he’s a sweet old guy and not a crotchety old man make a difference? You will not find group health insurance on the plains of the Serengeti.

While of course everyone on the panel acknowledged that AI is in its infancy, they pointed with evident enthusiasm to some of the remarkable successes already achieved in real life, with the likes of Deep Blue, and Watson, and the idea physicians are already able to call upon the likes of them to treat complex medical conditions is reassuring until the next generation supercomputer wakes up one morning and wonders why we are bothering to treat these conditions at all. Uh-oh. But true learning, I would submit, dictates that eventuality.

Fortunately, except in the highest-end laboratories we seem a ways from there – who hasn’t wondered what Neflix was “thinking” when it recommends movies “because you watched” so-and-so? Are Amazon’s you-might-likes, based on what you’ve looked at, all that on-point? Why do targeted ads know I was researching something to buy, but not that I’ve already bought it so they should stop wasting someone’s money on continuing to present me with targeted ads? Can enough lines of code be written to tell Flickr, the photo-sharing website that now tries to tag photographs automatically, that red pills in a blister pack are not gourmet tomatoes in a plastic sleeve, and would you really use a self-driving Uber for all of your transportation needs?

Will any software anywhere ever learn to give an older worker with some health issues and a spotty full-time employment record a job, when clearly the better decision would be not to, especially after tapping into his or her various “rewards” cards to see what they eat and what medications they take, etc. Let’s go back to Uber, perhaps unfairly. Would their algorithm ever learn to care whether it has 1,000 drivers in a city making $10,000 apiece, or 10,000 drivers making $1,000 apiece when more drivers benefit Uber by reducing wait time? Throw in an ability to check local unemployment rates and the median age of new hires in that town and is it any surprise that their driver recruitment page features an older – and presumably under-employed – man behind the wheel? Whatever they have running the show is already confident enough to offer drivers a few hundred bucks for new driver referrals because it has “learned” that existing drivers will increase their own competition for the price of an NFL ticket – now that is King of the Jungle behavior!

But there is another concern that emerges; the day before this session, I attended one in which studies were presented showing that the precision and recall of technology-assisted review (TAR), the famous predictive coding this conference devotes considerable attention to, varied significantly depending on the processing used, which I, like many people, did not fully understand.  While the two are not directly comparable in all situations, you can bet that in X number of years, it will be shown that not all AI is equally smart, and yet all will be cloaked with that aura of invincibility technology so often confers.

The final irony may be that an “honest” machine would “know” that AI is not ready for prime time and prohibit its use for anything beyond picking your next book, movie, or date, but until such honest machines are actually in charge, there is nothing to prevent some humans from deploying AI as if it was up to making life or death, or at least quality of life, decisions thereby letting the germ out of the sealed petri dishes. But when AI is in charge, Stephen Hawking thinks we might have much bigger problems, and I think Charles Darwin would agree.

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Product Shout-Out: Cost Containment

I have avoided mentioning specific products and vendors up until now, but every once in a while, one quietly moves the earth.

Speaking primarily to in-house counsel through its website, this vendor has this to say about a small-to-medium-sized case (less than 50,000 documents):

  • … legal can handle the entire matter end-to-end, without third party involvement.  This reduces costs related to processing, review, outside counsel and professional services.

A similar sentiment is expressed with respect to handling internal investigations and regulatory inquiries.

The company even sponsors an award for those who “serve as an inspiration for all corporate legal teams to successfully bring e-discovery in-house.”

Given that the review costs of electronic discovery still account for the greater part of the budget in many cases, this is not a product corporate legal departments OR law firms should be unaware of.

The company is Zapproved, Inc, out of Portland OR: (888) 806-6750 | zapproved.com


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On Background


The conference was attended by big names from big companies and other major players so all of this is reliable, even without attribution:

“I hone discovery requests numerous times” – to make sure they are worded to accomplish getting what we actually want.

“Throwing $750/hour associates at it does not work anymore.”

“In assessing the proportionality of a discovery request, you have to tell the court what you think the worth of the case is, because that’s what the ratio is based upon.”

“Get the Sedona Tool Kit” – you apparently don’t even need to be a member.

“Oppenheimer is dead.”

BYOD is unsettled, with some panelists saying business messages on them are not discoverable and others saying they are – have a policy about using them AND ENFORCE IT.

There is no discovery about discovery absent a showing of deficiency; it “is not absolutely forbidden,” but a 30(b)(6) is “the stupidest way of doing things.”

The expectation is that the “guessing game of what will and will not be produced” will be eliminated.

Using “any and all” in a discovery request marks you as out-of-step.

Corporations should look for ways NOT move their data rather than sending it out to law firms; significant cost savings can result.

On-premise data storage is dying out: “this is the time to introduce information governance” – why are you keeping what you are keeping????  The “biggest challenge is the amount of data.”

When transferring to the cloud, watch that pesky metadata stuff so that you remain eDiscovery compliant.

The costs saved by using analytics are “replaced by the ridiculous cost of analytics” – reducing the ever-increasing mountains of useless data you keep is the only way to keep these costs under control.  Don’t over-preserve.

A surprising percentage of corporate law departments do not ask their outside counsel for metrics, even though review costs still account for a significant portion of their budget and most law firms generate those reports.  Why not?  Well, there didn’t really seem to be an answer.

E-mail threading remains highly mysterious to non-techies, and can still be easily defeated.

And that was just from one of the three days at ALM Media’s LegalWeek, the Experience; you should plan on going next year because I’m sure they’re already gearing up for 2018.

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Predictive Coding: Sauciers & Secret Sauces


L to R: Nathaniel Huber-Fliflet, Dr. Jianping Zhang, Rishi Chhatwal, Robert Keeling

It was almost four years ago that I cautioned that “[w]ith predictive coding, you are obliged to accept documents produced by your opponent selected by an algorithm you do not understand that has been ‘trained’ by your opponent,” a situation that struck me as dicey at best. I just got back from LegalWeek, the Experience (also known as LegalTech 2017) and was not completely surprised to see that this is still the case.

The panel discussion held on February 1, 2017, entitled Predictive Coding: Deconstructing the Secret Sauce, sponsored by Navigant and Sidley Austin, started out with a basic inquiry: okay, we’ve trained the [predictive coding] model, now how well does it do what we want it to do? And there is the rub. According to the panel, all of whom could talk circles around me when it comes to this stuff, processing on the back-end can affect the outcome, sometimes dramatically. But, and paraphrasing them here, lawyers tend not to understand, or want to understand, the back-end, and vendors don’t really want to give away their “secret sauce.”

But, in a discussion replete with terms like N-Grams, normalized term frequency, inverse document frequency, down sampling, logistic regression and support vector machines, it was revealed that some pretty major differences in both recall and precision can be seen. As one of the participants said, he wasn’t sure why this happened “because I do not have a Ph.D. in machine learning.” Exactly. Another of the participants did happen to have a Ph.D. in machine learning and was quite eloquent, but I’m afraid it would have taken him about a semester to explain to most of us what was going on.

And then when I left the session, the very first major-name vendor I talked to volunteered that his platform used one of the sauces that hadn’t done as well ….

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