Judge William Matthewman on His Ten Tenets of eDiscovery, Competence and Generative AI

In other words, if an attorney is in a case management conference with you and they say, well, sure, I've got some ESI, I've got emails and that's it. That's all they know is that ESI equals emails. With other technology that is here and not going away with generative AI, ephemeral messaging, hyperlink documents, to what extent do you think that the attorneys have to truly be much more knowledgeable than just surface level? Do they need to get into the weeds with this or what is the ethical obligation from your perspective, Judge? I look at it a couple of different ways. Number one, if I was the client, I would want an attorney who's very well-versed in this area. It's no longer just text and emails. A competent lawyer needs to understand Slack, WhatsApp, Teams, all these types of platforms and ways to communicate.

If I were a client, I would want my lawyer to know that and I would think that parties in litigation would want their lawyers to be very, very up to date on the technology. Now, from an ethical point of view, it's hard for me to understand how a lawyer could zealously represent a client as they're supposed to without understanding more than just a basic knowledge of ESI or eDiscovery. I can remember years back, and I haven't had this happen in many years, but I can remember lawyers appearing in court and saying, well, Judge, I don't understand all this eDiscovery stuff, but I know everything's been produced. That may have worked 10 years ago, 15 years ago, but it doesn't work now. So I do think that lawyers, not just to do their job well and to represent their clients well, but also to fulfill their legal and professional and ethical duties, I think they have a duty to have much more than a basic understanding of emails.

and text. I just think it's, in this day and age, it's absolutely essential for lawyers to grasp that and to continue learning it too because the platforms change, the way to communicate change, everything evolves. Now we're getting into things like predictive analytics and search and production. These things are, it's a constant learning process. I find myself, you know, trying to educate myself and learning eDiscovery and ESI and all these other things on a monthly basis because there's so much new that is coming out. You know, how to handle hyperlinks, how to handle all these other things that are out there. So I do think that lawyers have an obligation to go beyond the basics.

You know, I think first of all they need to attend the appropriate seminars and CLEs and other programs that are out there. And I think on a case-by-case basis they should be able to understand where they're deficient and where they're not deficient, you know, where they're up to speed and go ahead and educate themselves on those areas that they are lacking on. And then if for some reason counsel just doesn't have the ability to educate him or herself or to bring himself or herself up to speed, I think they need to engage in an IT professional, an ESI vendor, an ESI expert to assist them in the process. And after going through a few cases with perhaps an ESI vendor or ESI software or an IT expert or other type of expert, by osmosis they're going to learn the process a little bit more.

So I think that's very important. I also think that, you know, in-house counsel for large corporations are going to be insisting on lawyers being up to speed on the eDiscovery aspects of their cases because it's a very expensive area. You know, discovery is a very expensive part of litigation and the more it can be made more expedient, quicker, fairer for both sides or all sides and less time consuming the better it is really for everybody because it moves the case along much quicker. I love your answer so much. One of the seminars that I think everyone should attend also happens to be the NeLI seminar that's happening in Kansas City in September.

You know, I think, and I've given this a lot of thought over the last year or two. I do think that, first of all, lawyer, this is one of the reasons lawyers have to be competent in this area. Because, you know, it's up to the lawyers, if they're showing a photograph or a video or some sort of generative AI, it's up to them to have the technological expertise or have an appropriate expert to look at that document or that video or that photograph or whatever it might be to make sure that it is legitimate and properly authenticated. So, you know, lawyers for the parties bring the disputes to the judge, okay? We don't, we have so many cases, we don't go through our cases to see what might be, you know, some sort of fake photograph or fake document or something of that nature.

So the first thing is the lawyers have to be competent enough and on the ball enough to make sure that they bring these challenges to us when they're appropriate. And the only way they can do that is if they understand generative AI and if they understand all the different ways that it can be used. I do think that the current federal rules that require authentication and that, you know, require evidentiary foundations for the admission of evidence, I do think that they can be used well in this area, but it is up to the parties and their lawyers to bring the challenges to the judge in a timely manner so we can address the issue. Using experts, perhaps declarations or affidavits, making sure that they bring the challenges to us.

And I think that's why competence is so important because if an attorney is not competent in the area, then some sort of fake document, fake photograph, fake video, whatever it might be, could be passed off on them and entered into evidence. So I do think our rules are pretty well designed to authenticate all types of evidence, including anything that may be developed through generative AI, but it's up to the lawyers to make sure that they check it out and they bring those challenges to the court.

I think it's another tool that can be used for document search and production. There's nothing bad about AI or generative AI in and of itself. All these tools, whether you're talking about technology assisted review or any other tool, when they first come out, they create a lot of confusion and a lot of people have a knee-jerk reaction against them. But there's nothing wrong with using these tools and the new tools, Gen AI, for proper search and production, but they do have to be supervised by counsel and that's really the key that is here. You know, as I said, there's predictive analytics coming out, there's generative AI, there's all types of search and production tools that will make it easier on parties and attorneys to find the relevant and proportional documents and avoid all the junk and wasteful discovery.

I think one way to protect when you're doing this process is you should have a 502D order in place in case confidential privilege documents end up getting produced. I think that is important. I think an ESI protocol in the right cases is quite important, but I don't see any reason why you can't use generative AI for proper search and production. So long as it's properly supervised and so long as it is made to work properly in the case. I love that and I want to make sure that the masses of legal professionals that are out there, you know, I hear this one particular episode because What you're saying is fantastic. And also for all of our listeners also, I believe you're alluding to the rules of professional responsibility, rule 5.3b, that says that a lawyer must supervise non-lawyers.

And in some sense, we're talking about GenAI being able to be perceived as being like a non-lawyer. It's producing out of case law that you have to make sure that it's not a hallucinated case law or coming up with, you know, and I'll put an air quotes responsive documents. But, you know, again, but judge to your point, you know, you have to be able to review before it gets sent out the door, which brings me to my next question, which is young lawyers. So, you know, it's interesting. So Brandon and I are of the, of the clock where we started off with many lawyers probably listening to this, you know, with banker boxes. And we started, I, my, Brandon has heard this story several times over.

My, on my desk was not a computer, but a dictaphone. And so, you know, I learned the fine art of dictating and this wasn't that long ago. I mean, it was, yeah it was, okay, it was over 20 years ago. It was.

Well, I think it might be a little bit too much doomsdaying but there is, there is a problem there. You know, lawyers cannot simply, new lawyers especially rely on AI, generative AI, they just can't. They have to do the hard work first. You know, no matter what you do, you have to do the hard work first. That's what gets you to be successful. And the hard work is reading the cases, doing the research, knowing the facts of your case, speaking to your client, all the other things that go into being a good lawyer. And if it turns out that lawyers are simply relying on generative AI to prepare their case or to do what they need to do, they believe in their case, that's gonna be a big mistake because you know, we've seen a bunch of hallucinations, they're not going away.

I spoke to a judge recently in the last month who just had another set of hallucinations. And you know, the lawyers have to make sure that they put in the hard work, they read the cases. AI can be a tool to assist them. AI could perhaps help them in drafting a motion or working out case strategy or maybe suggesting questions to use at a deposition but that's where it stops. They then have to take control and make sure that all the cases cited are correct, all the citations are correct, that the questions won't open the door to something that they don't want to come out, all the other things that good lawyers strategize about. So I'm hoping that young lawyers, with the high level of technology, everybody's always on their cell phone and everybody's always connected.

I'm hoping that they won't forget that they still have to do the hard work and that all these other tools are merely to assist them in doing the hard work, not to replace the hard work that they have to do if they wanna be good lawyers and good litigators. I think that's a great answer and a great hope for what the legal industry does with these new tools.

I think it'll probably help assist. I mean, law clerks are very important and AI will never replace law clerks. I mean, my law clerks are so important and you talk to any judge, the law clerks are just key to what we do because they are so important. And the good thing about being a judicial law clerk is you know, you have to stay within the parameters. In other words, when we have a case, we look at the case and the facts in that case. We can't use generative AI or some sort of AI to go beyond the facts out into some public arena to get information. We have to rely on the facts of the case and the law applicable to that case. So again, will generative AI be able to assist law clerks?

I think it probably already is. If you use Westlaw, you're using some form of generative AI. If you use Lexis and all these other tools, I think you're using some form of artificial intelligence, right? So if that's the case, there are other ways that it can assist law clerks, but I really do think that the unique role of law clerks, assisting judges and having ethical requirements to make sure you stay in your lane, you don't go out into the public arena for information, you stay only dealing with the facts that have been brought to your attention in that case. I think that gives law clerks a head start on future practice because that will teach them that they have to focus on the facts at hand and the law applicable to that case.

But I do think that AI, generative AI, I think it can be of assistance to not just loyters, practicing out and litigating, but also to law clerks. I don't see why not again, so long as it is properly supervised.

Yes and no. At least with attorneys who misuse AI, you have some ethical supervision and legal supervision. When it comes to prosa parties and litigants and prosa parties and litigants are important, they deserve their time in court. But I am concerned that pro se litigants who are not schooled in the law, who don't understand the fully the ethical obligations that are attended on prosecuting or defending a case in court, that they will simply rely on some of these online AI tools or generative AI tools to draft motions and consider that whatever is said in there is the Bible. When we know it's not, and I am concerned that pro se litigants will have more hallucinations than attorneys would because I do think attorneys are learning more and more that they have to supervise whatever tool they're using to make sure that their sites are correct.

I don't know that's the same with all pro se litigants. So that part does bother me and that does concern me. I don't know how you deal with that other than we on a case by case basis or perhaps in order orders to pro se litigants, we put in there to make sure that if they use any type of tool that they have checked it before they file to make sure that whatever is in there is accurate because I do think that is a concern. So on the one hand, I believe it can open up the law and help pro se litigants, but I also think it can be severely abused and misused by pro se litigants as well.

I think so. I think there's a lot of things that can be done. You know, I tell lawyers all the time. Young lawyers especially, when you get a case, if you're prosecuting or defending it, the first thing you should look at is the jury instructions. Pull out the jury instructions for the causes of action in the case. And that, though, look at the elements. And those are the elements that you have to either prove or defend against. And that's where you should focus your discovery and your efforts. So that's one thing. But I think a good lawyer, what does a good lawyer do? He or she communicates, right? They evaluate, they strategize, and then they litigate. That's never going to change no matter what tools are out there.

You have to be able to get a good communicator with your clients, with other lawyers, with other parties, and with the court, with judges. You have to do that. You have to evaluate your case correctly. Some lawyers have a tendency to, if there are plaintiffs on the plaintiff side, it's pie in the sky. This case is going to be worth so much. And other times on the defense side, this case is worth nothing. And they're not always right because there's not always a proper evaluation. So young lawyers need to learn how to communicate. They need to evaluate their case. And then it's really important to strategize. And while I think these tools like generative AI can help in strategy, they can give suggestions. They can assist in what might be effective strategies in the case.

But the lawyer themselves, they are the ones who have to make out what the strategy is. And then they have to figure out what is the effective way to litigate for their client. Once they've done all these steps, what do I need to do to litigate for my client so we can get a successful resolution? And that doesn't mean fighting everything. It doesn't mean objecting to every single thing. It means to only fight the important fights and the other things to cooperate and be professional about. So I think young lawyers are at a very interesting time. I think they're getting more tools than the older lawyers had when we all started out. They have a lot more assistance that's coming their way. Like you, I started out with going to warehouses and looking at boxes.

Sometimes I would bring my own copier with me to copy documents. So I couldn't, I wouldn't let the other side know what documents I was copying. I can remember using diptophones. You know, those days are long gone. So in many respects, it's a much better time for young lawyers. But they cannot forget the essentials of what it means to be a good lawyer. And that is a lot of preparation, a lot of hard work, a lot of research, a lot of communicating, evaluating, strategizing, and then figuring out the best way to litigate your case to get the result your client wants. And I don't think that's ever going to change. The tools will change, but I don't think the basics of being a good lawyer will ever change.

And I hope not.

You know, I've been involved in this system a long time. You know, I started out my career as a police officer and I would work the street. And then I became an attorney and I tried tons and tons of cases, a lot of very, very high profile cases, some not high profile, some short and and small, some very large, some lasted many months. And now I've been on the bench 13 years and I'll stick around for a while longer. I think what I would want my legacy to be is that I have tried to do everything I can to make our system of justice, whether it's civil or criminal, a more fair system of justice to all the parties. Every party deserves a fair hearing and a fair resolution of their case.

And I've often said that the way justice works is if you have competent lawyers who appear in front of a fair, even-handed judge who both do their job, if it's a criminal case, the prosecutor does his or her job, the defense lawyer does his or her job. They pick a, if it goes to jury trial, they pick a fair jury, the jurors do their job, they fairly evaluate the law and the facts, they evaluate what the facts are and apply the court's law to those facts. If all that happens, whatever the end result is, in my view, is justice. And so I think really my legacy would be that I would like the lawyers to understand how important their role is. I have had clients 15, 20 years later contact me.

And in a case that I never thought was that important, tell me how the resolution of that case helped them dramatically change their lives, whatever it might have been. And sometimes lawyers can get caught up in the day-to-day drudgery of the law practice and the hard work and forget how important their role is. So I guess my legacy would be to make the justice system better and to try and encourage the other participants in the justice system, both civil and criminal, to do their best to make the system better. And that means they have to do their role at a very high level. And if everybody performs their role at a very high level in every case, then the end result of those cases is going to be fair justice.

I mean, that's just the way I see it. You may not agree with the end result, but if everybody has done their job properly, the lawyers, the parties, the judge, the jurors, the end result, in my view, is justice.

All right, thank you. And good talking to both of you, Daniel and Brandon. Thank you very much. Thank you.