Ruth Hauswirth on Three Decades of eDiscovery, AI Judgment and Mindfulness

Thank you. It's so nice to be here.

Yeah, how it's changed. So I mean, when I first started practicing doing it kind of the old way, I guess, with the paper cuts and dealing with all the documentary evidence that was actually a piece of paper, it was one of those things where I didn't have this aha moment, but I could see that. And this was like in the late 90s. And when I look back, I realized I had this thought that it couldn't like with all the email that we were trying to figure out how to review. And how the evidence was now the universe of massive amounts of information that just didn't have the same characteristics as a piece of paper that made it so much more complicated. I don't know. I have this like this like because why two year 2000 was coming and everybody was making this huge deal about why to K.

And I remember thinking right around the turn of the century, like eDiscovery and the change with the universe of evidence becoming electronic wasn't why to K. Like, which turned out to be nothing, right? Everyone was freaking out about it. But it turned out that we got through it and it was no big deal. But I had this sense around that time that this was not why to K. Like this was going to fundamentally change the way lawyers did what we do because the information that are that individuals and organizations were creating was now all electronic. Almost every human interaction was recorded at some point. You know, we had a dog. We had a record. of it. Now, whether you can actually get to it is a different question and we have rules in place to help us navigate those obstacles.

But anyway, that's what, so I just had this sense that something like technology was not just, it was shifting the world, but it was real. I was very focused on what it was doing to litigation. And that's how it all got started. And I feel like what we're going through today feels so very familiar to me of those early days with the change from paper to email and to electronic information with generative AI. We're going through this. It's the same transformation. It's just another level of it. It's just another factor that we're entering, another type of information that we're dealing with, but it's fundamentally changing everything so quickly, obviously even outside of the legal sphere. So it's the same, I look at it through the same lens, you guys, I look at it as the universe of information that we have to contend with as humans and as lawyers is getting more and more complex.

And the characteristics of the lawyers of tomorrow are the ones that we have, we've always needed, but it needs to be adaptable and it needs to take into account that maybe the way that we've always done things isn't going to hold. And so that's just kind of how I've seen the trajectory of the intersection of law and technology because it changes the universe of information that we use as potential evidence. And just the way we work every day is becoming more and more complex with data.

I still draw a lot of parallels to previous disruptions. And I think that the role of a lawyer, what we bring to the table is judgment and the ability to take information in, make a judgment about not just sort of this or that, but there's nuance to every situation. And so I do think the human element of being able to critically discern what's appropriate based on the particulars of a particular situation. There's an ethical component to everything that we do. We have professional obligations. I mean, I don't think that's just for lawyers. I would say that's broader for all of humans, but we're not going to get into that today. But so I think where the human element has to stay engaged is that nuance element of it's not just an answer.

When we're looking at how we're going to resolve a particular dispute or apply a legal principle, it's not just this is the answer kind of an approach. And so when I think about this a lot, I'm working on a project team for Sedona right now on the future of legal education as well, because I've also been very involved in I taught eDiscovery law for over 10 years. And the element of what makes us effective lawyers has been something that's been on sort of on my mind for my whole professional life. And I think that what we have to be looking at is that how do you cultivate that critical discernment, that judgment around how a situation should be handled from with a legal perspective, an ethical perspective, practical perspective, like all the things that come at it.

And I don't think a machine, at least the way the machines currently are, are and I don't think we ever should relinquish that completely to technology. I think when so the augmentation comes in as where we as humans are coming to it, like what's the mindset that we're coming to it and what are we trying to get out of it? Are we offloading our cognitive, that sort of critical thinking, that judgment, that discernment? Are we offloading that? That's a warning sign to me if we are doing that. That's a red flag. Are we using it to take us away from drudgery kind of tasks? And frankly, being in the weeds about things that like information retrieval, information organization, classification, compiling, that's what I find it to be so, so helpful on.

But I wouldn't outsource the judgment piece. And I think that's a very open question about how we, how we not just educate future lawyers, but how we continue to support. And I wrote an article about this, this human centered approach to all layers adjusting to the changes that technology confronts us, that we're confronted with. And so I'm, it's just a very alive issue, that question of how does it augment and what are we, and I just think that we have to be very careful as a profession and as humans about how we're using it, how we're talking about it, how we're deploying it. We have the capabilities to be discerning about it. I don't know what will ultimately happen, but I tend to be a glasses half full kind of a person.

And so I'm going to stick with if we, you know, that we can come out of this for the better. And I feel like, and both of you guys, you know, been in the eDiscovery space. I feel like the eDiscovery space is a great template for how we can, you know, sort of navigate some of this because we were kind of in the trenches dealing kind of a little bit in the background a lot of the time, which I don't necessarily, I'm not making a judgment about that. I'm just saying that a lot of the work that gets done with technology isn't super, it's not the first thing that, you know, somebody in law school is going to jump to. In fact, not all law schools in the country even have eDiscovery courses and people graduate from law school and don't even have a sense of how discovery actually is done.

And so I feel like there are lessons that we can learn from how we, as a profession, faced technological changes in the past and use that with how we're facing what generative AI is putting in front of us right now.

A full-long answer, sorry.

It's there, the cat's out of the bag, and it's only going to get better. And not in every 12-month cycles, but in every two-week cycles. And there is an AI ethicist named Marisa Zalabak, who's wonderfully talented, incredibly intelligent, and has helped draft AI ethics policy as well. And she said something to me once where she said that with gen AI, human beings were handed a surf board in a tsunami. And I think that idea is right on because when we talk about a mind of a lawyer and what we offload over to AI, it really comes down to, I think, task-based and how we're leveraging AI. So everything becomes task-based. So are we looking for, in the world of data governance, information governance, are we looking to classify and categorize documents better?

Sure, we can label things much better, right? That's an efficient But then we take a look at, we ask AI, we give it a prompt, and we say, I've got a motion for summary judgment. I need you to create my argument for me. Right now, that's that's what another attorney once said to me is we become cognitive misers. In other words, we lose that ability. So you've got this one camp of attorneys, and it's not age specific. We see that in the in the JNAI case law, which of so far halfway through more than halfway through 2026. There's a lot more of this JNA case law, thankfully. And what we're seeing is that there's a lot of people offloading forget about the hallucinations. That's just that doesn't even matter to me anymore because that's just, you know, it is what it is.

So everyone's offloading. But then you've got another faction and it was like, I don't even want to use it at all.

Neither one of those are good.

Big question. And it's such a, it's just a really rich, interesting question because I feel like I've said this a few times and spoken with some folks about this. I feel like what generative AI is doing is shining a huge spotlight on the way that we've always done things and making us sort of look at, is that the way we should be doing things? Because we can't look at what the, so what these young, what these, you know, lawyer, law students are encountering in law school now how they are going to have to learn. This is what the law schools are contending with right now. And then coming into practice, what, how did they get the reps? How did they get the reps to be able to do the kind of critical thinking that kind of what we were, what I was talking about before, like what makes us different from a machine like what or even just people who are not lawyers like that critical legal judgment that how do we inculcate that now when everything is at the end, there's an answer at their fingertips.

So I think it's just a really, we could do a whole podcast, I think just talking about this particular issue, and maybe we will someday, but the, I think it requires us both at that. This is, this is where that spotlight comes back. It's not just the young lawyers or the new lawyers, I should say, it's affecting the entire profession, because everyone has to change the way that they're doing things now in light of technology. We can't, maybe we could get away with, you know, people for a while could get away with not using TAR for large document reviews and maybe they're, you know, but most everyone is using it now, at least on the, you know, big commercial matters. If we don't have the resistance to it that we used to, but with general AI, it's in everybody's hands, like, everywhere.

And so we have to contend with it. And so I don't have an answer to the question of how, but I think there's some really interesting things that we can be doing, like looking at different ways that we can be acquiring those skills, applying those skills. One of the things, like for someone, and I've talked to a lot of lawyers about this, for people who've practiced for a while, they have that ability to discern when something comes, like to prompt it in a way that's effective to see if the output, you know, really is, it is doing what you're asking it to do, or there's accuracy. There's, you know, they can do the validation, whereas people who haven't done the reps of practicing for a while, and they're still learning, how do they really know what the output, if it's useful or not?

We have to be thinking outside the box about different ways to be learning those skills. And again, I don't think it's just for law students. It's everyone is facing these kinds of changes. So, yeah, I wish I had more time to kind of talk about, again, maybe we'll come back to that, but as far as the resistance, like how do you address... the resistance. I think that's just a human question. Like when people, I just, this is one of the things about my meditation training and the mindfulness facilitation training, one of the things that we did a lot of study on was how our brains work and neuroscience and just, you know, kind of how humans just sort of operate in the world. And we're really, I mean, the way I, this makes a lot of sense to my mind.

We're constantly scanning the environment for threats and opportunities that we're just like animals in that way. And when there's resistance to change, it's a perceived, there's perceived threat, whether it's conscious or not. And so I think one of the things that I've given some thought to about how we inject new processes to the way we do things, whether it's specifically related to generative AI review, or you can give 100 different examples, it's getting to, okay, how do we meet that human element of either the threat is I'm just, I just don't want to learn something new, or the threat is I don't want to face that I don't understand or whatever it is. Like we have to address that as people who are offering up these processes and educators and folks just in the community, helping each other through these changes because I mean, it's it's very natural.

And so I've talked about making me having you know, places where people can, instead of just sitting through a demo of how something works, like having people getting like working together on something. So someone have like AI buddies, if you will, like so because I'm sure you guys have seen this in your organizations. You've got people that are just running right for it, right? They just love it and they want to get it. They want to understand it. They want to do it. And then you have people who are just like on the other end of the extreme, as Dan, you were saying, and then you've got everything in between. And so I think we just have to leverage each other to creatively figure out ways to see how these tools can be effectively implemented into practice in a safe, effective way.

There's so many I've seen some so many really cool creative things that people have done both at my firm and at other for you know, out in the world. And I think it's just one of these kinds of times where we have to rely on our creativity and our curiosity. How do we how do we foster that in people so that threat when that threat comes up, it's not a barrier to change? I hope that was helpful.

I think that what again, what we have experienced in the past is paving the way for the future with validation. I mean, I think one of the things like TAR is such a great example because the whole idea around tools like ESI protocols were to help people get to that sort of middle, you know, sort of that compromise, that place where they could move forward without a lot of battles. Like it had such good intentions. And then the protocols became a battleground for us to fight about things that we really, like the rules don't even require some of the things that, you know, people will put in protocols. And it's interesting how something that's a tool becomes a weapon. And I think that we're at risk of that again with generative AI taking us away from the benefits of what this technology can do especially in the review context but again it's so much broader than just the review context.

I feel like I and there have been cases that have already sort of pointed to this that generative AI is sort of just an extension of TAR. It's like it's so the same validation. So I think we're gonna I think the answer is probably both it's gonna increase the battles over validation to the point where it's gonna diminish the returns of actually using it depending on how you're measuring you know how much time is spent defending you emotions and sitting you months and months of meat and confer because nobody can get agreement on anything and does that. I hope that we're not going to go down that path with generative AI and that will there just seems to be more of a an acceptance of hey if you have if you are following a process and you can show what you did you show what the you know what process you followed and assess the outcome don't pick apart how you got there like right off the bat like that seems to me the most efficient way to do it but yeah I mean depending on I mean we're an adversarial or an adversarial system and so that's always going to be a factor in it but just purely without all of those antics I think that there's no way we can do some of the things that we're seeing with the assistance of generative AI in the time that we're able to do it and it's not just saving time what I'm seeing when really well thought out processes are followed and people are querying these tools thoughtfully and with discernment and you know do not cognitive just you know offloading and all that the results can be really empowering in that you actually get to do the thinking you get to do the strategy you're not just a relun...

you're not just having to do all of the retrieval and the organization and that piece you know so it's I'm very hopeful that we won't see the returns diminished because we have to do that validation I think that there's a middle like a balancing that will be able again I tend to be a positive kind of outlook person I'm not naive though and I know the realities but I think we're going to we're going to benefit from a lot of the lessons we've learned from the last you know 10-15 years with TAR in applying this to specific legal tasks. The upside to everything you just said was that if we apply AI correctly in the legal profession then we're going to see a lot of the benefits and and for those that are listening you can't see the smirk on your face right now as I say that right because it is something interesting to think about that we have a way because as you said it is our profession right we're adversarial nature is that we may potentially mar or hinder our ability to really beat the benefits in the legal profession because we spend so much time litigating over the utilization of something that we call JNAI we can't we can't escape it we can't get away from it but we also do discovery upon discovery we've done this for years and we clog the court dockets and we make litigation unbearable and cost excessive that we've done that very well as well and that is glass neutral Ruth and so I guess what I'm wondering from some of the things you're talking about you're talking about some of these benefits with all the benefits that are there's been a lot of talk about well how about changing the rules right we should change the rules because there's so many great benefits of JNAI and it can do all these really great things well we should also just change the rules that relates to just to protect all of us like let's change rules 702 and that got and that got passed by the rules committee and they said no we're not going to deal with it this year in 2026 we'll do it the next year there's talks about changing other rules of evidence like around deep fakes and that also has gotten moved over changing the rules relative to competence and truth to the tribunal etc we have all the right rules in place right I don't think that we need a rewrite of any of the rules it's just new technology being applied to the existing rules do you think that we need a rewrite of all of the rules professional responsibility the rules of evidence the rules of the procedure just to address this the benefits of this new technology or what we have is sufficient you just got to get your act together and realize it's the same thing.

It's just different tech. I don't think we need a complete rebamping of the existing rules, although what we do know is when you were asking the question, I was reminded of when the rule changes for, with respect to eDiscovery, the federal rules of civil procedure changed in 2005 were the big changes and then 2006 and then we had in 2015 and when the rules in 2015 changed, rule 26B which is the scope of discovery and we, they basically the rule, the rules committee just moved part of 26B, they just moved it up to 26B1, like they just basically moved something that was existing in the rules because people, proportionality that was the part that was moved up to right in 26B1 and the reason behind that, a lot of the reason behind that was it's, there were some other tweaks to it but it was people weren't availing themselves of this very important concept in discovery, that discovery needs to be proportional to the needs of the case and so they didn't really change the rule, they just repositioned it so that it was higher and it was more prominent and I wonder if that's what we're going to be seeing is tweaks to emphasize how these technologies are just raising these issues, it's kind of turning up the volume on what already exists, I do think there are some evidence on the evidentiary front with respect to deep fakes, I think there probably are some changes that are appropriate there to help because we're kind of in new territory with that kind of technology, we've always had to deal with falsified information but it's different because you can't really tell anymore what is and what isn't and so that's I think that one I would maybe carve that out but no otherwise I think it's amplifying the parts of the rules that we really need to pay attention to rather than rewriting because you know I just think that we've seen from the past that if we tried to write the rules every time there were developments like could you imagine if they wrote the rules in 2006 just for email like it would it just it would have been silly and I think they made the right decision to be sort of technology agnostic and have the concepts of the rules be what helps lawyers right-size their cases and we really got to that in 2015 even more but you know we're still we still have the same archivist about those kinds of things so I don't I mean that's a really I don't think more rules are going to change lawyers behavior I think it's education that's going to change and I think the path that we're I'm starting to see more and more we're starting to see more and more states have requirements for lawyers to as part of their continuing legal education for technology related topics to be part of the criteria you know certain credits that you have to obtain like we have in California we have you know we take classes on we have to take certain credits on reducing bias and implicit bias and things like that technology is now becoming another type of CLE that states across the country are starting to recognize and I think that is overdue I do I really think that back to what we were talking about a little while ago just even in law school that technology has to be acknowledged as something that is changing the way lawyers are practicing you can't it just has to be integrated into the way we're educating future lawyers and the way we're continuing to educate ourselves as lawyers and I think that's where we the profession hasn't done a great job except again in the eDiscovery space we've embraced it you know we've been for waving the flag for years but it is it hasn't I think gen AI is going to turn that volume up really high speaking of that when we talk about behavior you.

Yeah, yeah, a huge challenge. I mean that it has to be one of the hardest things to just data management in an organization and then you add on top of it now all these tools and the ubiquity and availability. I don't see policy alone. We've got years and years and years of evidence to show that's not going to necessarily address the issue. I think it's a necessity. You have to be clear about what your policies are and then do your best to educate your population about how to navigate it, making sure people have the tools that they need to do their job. I mean one of the things I believe this to be true that people when given like people want to use tools that are going to make them more effective and not have to do as much judgeery work.

I mean I think once you get past those resistance things that we talked about like people want to use the tools that are out there and so making sure that they have appropriate tools in their hands and also understand the implications of why the policies are the way they are like understanding why you don't put confidential information into a public system. All of those issues I think are really important not just for lawyers but for just everyone within an organization and that's a tall order but we've had these things we've been dealing with these things for decades helping employees understand the why behind the why things are done. Shadow IT and all of that stuff is that there's a new version of shadow gen AI you know where people they acknowledge the policy that they're not going to use tools outside of that they're supposed to but how do you control that when people have supercomputers in their hands and they have access to all of these things.

So it's I don't think policy alone is going to solve it but I think it's an imperative part and then you have to be really diligent about education that understands the human animal. That's what I'd say. Like do your best to try and understand like what are the levers that are causing people to not comply with policy and try to address those as best as possible putting resources on those kinds of issues and you know like with security is a great example. You know security just like ratcheted up what like I don't know maybe 10 15 years ago when there started to be all these horrible things that were happening and then and so it's like can we address it before the horrible things happen in an effective way.

It's a tough one. I mean that kind of work is really hard and I just all the folks inside organizations that are trying to do this it's it's a very heavy lift but yeah we're pulling on the same concepts that we've been talking about you know just really making things tailored to like the why behind people do what they do and why the company is doing what it's doing and making sure that people have the right resources available to them. But really tough one Brandon that's that's a that's a really tough one and I think with generative AI because you know I hear this all the time my grandma uses it you know it's just everywhere and it's but nobody really understands the AI literacy piece is a really important part of education that I think we're going to have to be contending with not just in law schools but and not just in you know organizations but like as the little ones are coming up you know through the system what are they what are they going to need to know and the target is moving it's always changing and it's it's we've got we've got a lot in front of us right now as it just does a species I think in terms of again that spotlight I feel like it's it's shining on us to look at where are where are our values and you are our values in line with what we're doing and what we're saying and it's where it's not in alignment we're going to start to see some really we're going to have some painful events and outcomes I think.

Yeah, so we have to we have to rewind a little bit before my certification, which I received in 2020, fun year to be to that's a year to get it. That's right. I had signed up before all of that happened. But in any event, you have to go back about maybe eight years before that and how I came upon mindfulness meditation. When I speak about this very openly, because I think it's really important to desigmatize these kinds of things. I was, I would say I was not just struggling with burnout, I was struggling with depression, and also manifesting in anxiety, like it was it was very strange to expect I wasn't it had just been I guess I'd been building for a long time. And so I was very fortunate that I have a wonderful husband who kind of saw that I was sort of spiraling down a little bit, maybe not because I had so much going on, you know, I was able to kind of hide within all the busyness that I had going on.

And anyway, I found a great therapist and learned about mindfulness meditation. And I took an eight week course called mindfulness based stress reduction, which is a short, the shorthand is MBSR. If you Google that, you can find MBSR programs offered all over the world. It's a very highly researched program that's, it's anyway, very effective program. And there's a lot of research to back it. That's where I learned. And what I saw the reason and then what led me to want to do the certification was, let me just say this to you, it's a wonderful practice, and it's a huge part of my life. It's not a cure all. It wasn't the way that I was able to navigate those difficulties that I was having. And there was a lot of other things that also helped me quite a bit.

And including medication. And again, I'm not afraid to admit that because I just feel like it's so important, like we're all struggling with something. And it's just, it's very important to me that people out in the world don't feel isolated and alone and think that it's just them, because that's what oftentimes people feel. So in any event, I became very aware as I started practicing, something stuck with me, like when I did the eight week class, you know, I kind of, I wouldn't say I'm a type A personality, but I'm definitely like an achiever. Like I always wanted to get an A. So I wanted to get an A in mindfulness when I was taking class. You know, they weren't issuing any grades. So I stuck with I did everything they told me to do.

And then I kept I just it was odd after the course was over, I kept going with it. And I it became kind of just something that I felt was my I remember my husband saying to me one day after I had finished, it was almost done with the class. And he said, whatever you're doing, honey, please keep doing it. Like he could see that there were changes. And I could give you examples of things that I've talked about. But just in the interest of time, I will say, so I continued practicing. And then it became very clear to me that I wanted to, because it was an accura, but because it had been so effective, and it wasn't an easy practice by any stretch, I wanted to learn how to facilitate with others, like how to help other people and do it in a way.

The reason the UCLA program was so interesting to me, and this may have been my lawyer training in my lawyer brain, it was very connected to the, again, the research and the neuroscience behind it. It also has its roots in contemplative traditions, Buddhism and other ancient traditions. And that fascinated me too, but the secular drew me at that particular time. And so it was a fabulous program. And so what I ended up doing after I got my certification is very just casually, like it's, I just, I sit with some colleagues once a week, you know, it's like not a big deal. People just show up when they want to, and it's very, I feel like the way that I facilitate it is not as another thing you have to do on your to-do list in order to be a well-human.

Like, as if you put it in that context, it feels like another to-do, like I have to get my protein, I have to get my steps in, I have to get my meditation in. And that is so counter to how mindfulness really operates when you get to sort of the core of the way it works. And another really important piece of this, you guys, I think that is important to say, and Dan, you mentioned this, how it's not, isn't something that you ever perfect. And there's a really good reason why we can't ever perfect, keeping our attention on one thing. And it's, again, it goes back to the fact that we're animals constantly scanning for threat. And we can take that to an extreme, right?

When our life becomes overwhelmed with anxiety and constantly seeing threat everywhere. And that's when you need help and intervention. But it's a feature, not a bug, that we are easily distractible. And I say that off, and I say that really intentionally because I think a lot of people don't stick with meditation because they sit and they think, oh, I can't do this, I can't quiet my mind. I suck at this. And it's like, that's not the point. Like the point isn't being able to quiet your mind. That myth being busted for me was probably the most eye-opening part of the whole, my whole endeavor with it. It's that, of course, you're not going to be able to quiet your mind. The point is, how are you relating to your mind and in an individual, and relating to yourself and relating to others?

And the relating to the self in a kind and compassionate way, people might hear that as old or she goes on the woo-woo stuff, but it's absolutely scientific-based that, again, we can talk about that forever. But these were pieces of the puzzle that came together for me that enabled me to want to be somebody who is talking about this out in the world. And it's like, literally fortunate that I get to do it. But next week I'm going on a six-day silent meditation retreat. I go three or four times a year. I go silent, no devices, no anything. And it's just a way to, it's something that feels very rejuvenating to me. But yeah, I found it again to be a really powerful practice but we can't come at it in the same sort of a cultureized way of achievement.

That's because it go run away from it. Well, instantly run away from it because it does enable you to create the ability to kind of see what things are and see that there could be some discomfort and distress that you can see that without being overtaken by the way. But you can just see the way coming and riding rather than to get pulled under by the way. And this is one of the things when I was stopped after this but one of the things, and BSR that I mentioned, the mindfulness-based stress reduction originally was an eight-week program developed in a medical school in Massachusetts, University of Massachusetts I believe for chronic pain. For a meditator, John Kabat-Zinn, very famous in meditation, mindfulness community. He was a researcher and he maybe all put my Buddhism practices develop people with chronic pain because you can't run away from chronic pain.

There's nothing you can do. And you found that people found relief and the ability to cope with that in a more effective way. And anyway, it's really inspiring how the science and the sort of contemplation of wisdom is converging. And your science is starting to kind of hand out why these practices have been around for thousands of years and are actually effective.

My pleasure, you guys. I'm happy to come back.