E-Discovery Predictions for 2023

Daniel, thanks for having me. Of course, it's always an honor sharing the podium with you. I'm glad we've got Jared here with us today. And of all the programs that we, you and I have done over the years, I think this one may be the most fun.

This episode's gonna be weird because I'm gonna ask you the questions. I hope you're ready for this. You are in the hot seat with Jared, didn't I?

It's much better to hear you say it. So if you could tell everyone a little bit about who you are, what you do, and let's start there.

I guess the reason I'm here with you and the reason I work with you so much, Daniel, and the team at BDO is because I'm in legal technology. And how did I end up here? It was actually a story of tragedy. It was the terrorist attacks of September eleventh two thousand one.

I had graduated from law school and was Porter at the National Law Journal. And when that tragedy occurred that day, ALM was gathering up the team to go out and cover it. I was at the National Law Journal, and my colleague Monica Bay was the editor of what at the time was law technology news. Now it is legal tech news.

And so Monica and I went to the World Trade Center together. We wrote articles that appeared in the National Law Journal, the New York Law Journal as well. And, of course, Legal Tech News because Monica was the editor. And we worked very closely on the September eleventh coverage, and Monica said, hey, Why don't you write an article for me too?

So at the time, Bob Ambrogi, who I think a lot of your listeners know. He was my editor in chief, And so I said, hey, Bob. You mind if I write an article for Monica? And he's like, no.

Sure. That'd be great. So Monica and I came up with technology on trial. It became a large pretty successful.

It was an award winning column. Others took it over after I left DaleM as a full time employee. And the thing is, I've really never left ALM. I still write for legal tech news, and so I've been writing with them for over twenty years.

After that, it was the sort of thing. You know, journalism is a job that you really love. You know, you wake up each morning and say, wow. How much fun am I gonna have today?

And one of the things Monica used to say, you gotta decide. Do you wanna be a lawyer? Or do you wanna be a journalist? I'm like, I wanna do both.

And she's like, well, good luck with that. I think I have. And it's one of the reasons I'm grateful to Relativity. I went in house for several years, doing policy legal work, had some interesting first amendment issues, some interesting commercial issues.

And was an analyst and council at four fifty one Research, now part of Standard and Pours. Where I covered eDiscovery and information governance. And one of the companies I covered was a little company called kCura who had this revolutionary software product called Relativity.

And, of course, kCura now is Relativity.

And it was you know, I they were a client, a company I covered. And after a few years of that, they said, hey. How'd you like to come work for us? And Andrew Sager, the founder was there, and Nick Roberts, of course, Sean Gaines, is a great team. Sager put it to me this way. We wanted to give something back, and that was free CLE and free legal education.

And so I write a lot. I still write legal tech news, write for the Relativity blog, and write for various articles. I think you and I have discussed a law review article I wrote for the University of Florida law review for a couple of years ago. So I like to think that this is a long winded way of saying, started at September eleventh and enabled me to and, hey, we can't make light of that tragedy. So many people lost so much. But it changed the course of my career and So I am the lawyer slash journalist.

I sometimes refer to myself as more of a talking head because we have a legal team in the office of the general counsel. That does the real legal work. I guess I'm more of a quasi law professor and legal speaker than anything else. And one of the great things that enables me to do is work with you, Daniel Gold, You know that's interesting.

You know, I like to think so, but, Daniel, one of the things is we've all got to remain humble. And I like to think that I have had an influence, and I like to think that I've helped people out along the way. There's an expression that I sometimes use, and it's sort of an awful expression, but the expression is summaries are full of indispensable people.

Jared, I should not admit this, but no. I am not one of these people who was an inherent technologist.

In using the nine eleven example. There were people at the National Law Journal and law technology news. And, like, why is this a legal technology story? Well, it was because all those legal records were blown up.

And there were just no records And that was before the days of the cloud. I'm really dating myself now. But when you turn that clock back twenty two years, you didn't have what Bdo has, what we have at Relativity, and that stuff was gone. And that really piqued my interest in technology because, you know, obviously, the technology was there, but it certainly wasn't commercialized.

And just the way that technology has changed everything. You know, growing, I grew up in Houston. My dad was with NASA, and there were a lot of kids who had that real, real interest in technology from their parents. And, you know, my dad being at NASA gave me a little bit of an interest, but I had much more of an interest in the law.

But I'll say one thing, I am sure glad that I had a career that went into technology because to use the tried expression, the techno lawyers are going to be really, really in a good spot. And Daniel and Jared, you probably know this too. Daniel, I is more on the legal side, but he's a great techno lawyer. Jared, you're on the technical side, but you know the legal stuff as well.

Really, right? You've got these articles where like these law firms are putting out press releases all over the country. They are embracing ChatGPT, while simultaneously I read an article in the Wall Street Journal about how professors are finally understanding what Chut GPD essays look like, and they can identify and spot it. They'd use words like you.

It's like a spectacular influx of nonsense. One professor described it as when you write your own piece of work and you apply critical thinking, which is what we do as lawyers. Right? And you apply your own critical thinking.

It's like eating a really great steak. But when ChatGPT puts together an essay, it's like taking every single item on the menu, putting it in a food processor and serving it as soup. Right? It doesn't taste good.

So here we are, it's like the iPhone. It's like everyone embrace the iPhone, but we're resisting about technology that helps us do our jobs better as lawyers. But we're embracing touch GPT, David. What kind of world are we living in when we can't use technology assisted review and advanced analytics and conceptual searching.

But, heck, We've got ChatGPT to help us write our motions for summary judgment. What's happening, David? Well, first of all, Daniel, the world is fraught with peril. And, yeah, it's popular.

Yeah. It's cool. But ChatGPT is going to be with us soon, and any technology is going to advance I like what professor Thomas De Gregory of the University of Houston said many years ago. It was a theory of technology, and it's like for every problem technology creates, more technology can solve.

But on the ChatGPT thing, sometimes it's wrong. For instance, they published recently this thing, the top ten lawyers in eDiscovery.

I'm on that list. Now granted, at the bottom of the list, I think, but there are people who are practicing eDiscovery law every day. I am writing about it. I'm commenting on it.

I put educational programs together. I am not one of the top ten eDiscovery lawyers in the country. Another thing is, I think there was a professor who came with a novel idea to ensure academic integrity, and that's, like, I guess some of us are old enough to remember the blue book when you had to do exams and write them out in the blue book. That's how you get around ChatGPT make those students write their exams.

But then wait a minute. We stopped teaching cursive handwriting in schools. You're gonna block print that exam. It's not very fast.

I went to law school at the University of Florida's eleven college of law, Go Gaters. We still had blue books when I was there in the nineties. So maybe the more things change, the more they stay the same.

I guess that is the moral of the story. You know, it's interesting. My sixteen year old told me that She didn't perform as well on a recent test because she had to actually handwrite the test that typing on the computer is much better. It makes you wonder how much technology all the students have access to, including chat, GPT, while they're taking the test.

Yeah. And, Daniel, we're gonna keep with our theme, and maybe you wanna call this episode the more things change, the more they stay the same episode. I'm gonna do Jared, that this is why we have David. This is it. We're doing it. We are doing it. I and I do realize I use that expression too much but it does convey the image I wanted to convey, sanctions cases are always very popular in CLE's, podcast programs, because lawyers wanna make sure they know what the sanctions laws are so they don't get sanctioned.

Spoliation of evidence is a big problem.

And that is one of the fears of ephemeral data that you are going to be spolating evidence. And Daniel, you and I have discussed before the two thousand fifteen amendments of the Federal Rules of Civil Procedure, and how it became a little bit more difficult to get the nuclear option of the most serious sanctions under what is now oh, federal or civil procedure thirty seven e two. And so and on the one hand, it's tougher to get those sanctions. You've got to show the intent to deprive.

Is the use of an ephemeral app evidence of an intended deprived? No. Certainly not on its own. People use them all the time.

Enterprises organizations use them all the time for different things. You've gotta show that intention to pry, but you shouldn't take too much comfort in that because as judge Francis taught us in the cat three case, there are other ways to sanction bad behavior when you discovery than thirty seven e There's thirty seven b if you violate a court order doing it. Judges have many, many tools at their disposal to correct this So just the use on its own is not, I don't think, indicative of intention to pry, but it's controversial. The reason I said, you know, let's call this one.

I don't wanna speak for anyone else, but I've been in meetings where the instruction was, this is highly confidential client information. Nobody take notes.

And so if you're standing there with a yellow legal pad with an instruction nobody takes notes, is that any different than using an ephemeral app? I don't think so. And no one in the one meeting I'm thinking of, nobody was trying to do anything that was unethical or dishonest It was, hey, we're going to protect client confidences. By the same token, some people may feel the use of ephemeral apps is protecting client confidences.

Now that's not to say it's always that case. There have been cases where it was shown that, okay, there's some real, unkosher stuff going on here. But once again, why they have us to give CLEs? Why we have lawyers to practice in these areas? Because it's good to know where the limits in the boundaries are. Is this a topic that more people are asking about these days?

You know, I guess, for the past three months, the topic people ask about is ChatGPT.

I would say, probably three years ago, there was a lot of talk about it because there was big litigation on the issue. It ebbs and flows. I think that you know, one of the issues that has come up recently is protective orders. We talked about that at both the University of Florida eDiscovery conference on that judicial panel.

I've got the honor of moderating that one. And I do the Relativity fest judicial panel. Of course, the original one as well. And that came up because it's not just protective orders to protect confidential data because data privacy is certainly a big topic.

But it's also the use of sealing court records.

So you've got those two methods, and one could argue it's protecting data privacy. But there's a question about whether it's gone overboard.

And I don't want to speak for judge Matthewman, but I think he feels that it's gone overboard. There's too much ceiling. And because, you know, we are supposed to have open courts. We do not have star chambers where things are done in secret So it's a really big issue.

Then again, you know, you look at the Europeans and people from other jurisdictions all over the world who are thinking, My gosh. Those crazy Americans in their broad y discovery, they want everything in the kitchen sink. So there's got to be a real balance. And so I think you'll both remember several years ago when we had the Fitbit cases.

And one resulted in a murder conviction because the husband Fitbit data sort of sold him out on that. So all sorts of data. And, you know, we talk about the Orwellian nightmare or the Hell two thousand one nightmare.

Data privacy is a really important issue. And so you got to balance it. You got to balance eDiscovery and the needs and the right to evidence. I mean, we want people to have the evidence they need to go to court. We also don't want electronic invasions of people's homes. And I did an article for artificial lawyer last year that was protective orders in USC discovery, a panacea for privacy, question mark. And that question mark was very intentional and very necessary.

Because some would argue that it certainly is not a panacea for privacy, and that any discovery, private stuff does come out. That's why we have attorney for eyes only. That's why we have confidentiality designations.

In a lot of ways, and Jared, you're our technologist here. You're not gonna like me saying this, but it sure, most of the time, more of an art than a science, but it is both.

So, yeah, Jared, those kind of cases are really interesting and it's why technology is so important. And then fascinating. Well, what other predictions do you have for twenty twenty three? What are the other hot topics coming our way? You know, it's really interesting.

We have a new chief legal officer at Relativity.

It's Adam Weiss, He went out on a limb in our predictions webinar, and the prediction, along with Mike Cuateraro, they are both predicting a somewhat robust economy this year. And so, Mike was really big on the robust economy.

And Adam specifically was, you know, the age of crypto isn't over yet. So Adam was bullish on crypto. Mike was bullish on the economy in general. So I think those were important.

Chris Dale of the e-Disclosure Information project was big on saying that, you know, there may be real ethic and disciplinary problems with lawyers who don't take proper protection of data. And, you know, this brings us full circle to a topic, Daniel, and I have discussed. Twenty twelve, the amendments to the ABA model rules of professional conduct specifically, comment eight to rule one point one, about the need to learn technology. One of the things that happened there, and I was on a panel in two thousand twelve when this came up.

And the idea was that This thing is buried in a comment to the rule, and the model rules of professional conduct or advisory.

The catch on that though is that many states base their ethics rules on that. And now and in Bob Ambrosia does a great job of covering this. Now there's a bandwagon in the states. It's over forty states.

I'm embarrassed to say I don't have the exact number, but I wanna say over forty five now, and we only have States, plus Puerto Rico, DC, and other jurisdictions, it's getting to the point where you really have an ethical responsibility to know technology I think the California ethics opinion from a few years ago is great. You got three choices. Know the technology, retain the services of somebody who does, or your third option is, decline the representation. That's right.

That's right. And and justice Kennedy even talked about that as well in our podcast and talked about the responsibility to bring somebody on board, and she talked about how New York is very forward leaning with respect to California as well, very forward leaning with that By the way, he mentioned my Cortero. He was also a guest here on the podcast episode number two for those who haven't listened to it yet. Worth going back to listen to it.

Nice summation counselor. I think you're spot on. And I think we're already seeing that. And I think a big theme is gonna be the tension between data privacy and eDiscovery But that's really nothing new that's been going on. Is Chat, GPT, a fad that's going to go away?

I don't think so. But I don't think it's going to be like it has for the past three months where it's been the top item on every conversation.

And I know we already have TAR two point zero, TAR three point zero. Let's call this, I don't want to call it TAR ten point zero. Why don't we call it, oh, TAR of the future.

Put in some space -- There it is. -- sci fi music in the background. Because it's really TAR on steroids.

Thank you.