My OxyMoron guest this week is Kenneth J. Withers, Deputy Executive Director of The Sedona Conference. The Sedona Conference (TSC) is a nonpartisan, nonprofit 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, intellectual property rights, and data security and privacy law. The mission of TSC is to move the law forward in a reasoned and just way through the creation and publication of nonpartisan consensus commentaries and through advanced legal education for the bench and bar.
Truth be told, I have loved and admired – and envied! – The Sedona Conference for a long time. The Sedona Conference’s free publications page is HERE.
Since 1989, Ken has published several widely distributed papers on electronic discovery, hosted a popular website on electronic discovery and electronic records management issues, and given presentations at more than 300 conferences and workshops for legal, records management, and industry audiences. His most recent publications are Ephemeral Data and the Duty to Preserve Discoverable Electronically Stored Information in the University of Baltimore Law Review (2008); Living Daily with Weekley Homes in the Texas State Bar Advocate (Summer 2010); and Risk Aversion, Risk Management, and the Overpreservation Problem in Electronic Discovery in the South Carolina Law Review (2013).
Here’s my curated summary of my OxyMorons conversation with Ken. Any errors in transcription or curation are mine.
What would I be surprised to find on your Spotify or Pandora playlist?
What would you be surprised to find there? Nothing. There is no Spotify or Pandora playlist. I listen to music on Amazon and on SomaFM, which is a somewhat obscure internet radio station out of San Francisco. But here are some favorites that I’m sure are new to many, including a set of covers on accordion!
How about your recommended TV binges from COVID?
I think like everybody else in the world, I started out by re-watching all of The Marvelous Mrs. Maisel episodes again and again, because it's wonderful, and parts of it are like my childhood. Right now, I've just completed the second season of Vienna Blood, a 2019 British-Austrian psychological thriller television series set in Vienna, Austria in the 1900s and based on the Liebermann novels by Frank Tallis. And now of course, we're In the middle of Around the World in 80 Days with David Tennant.
How is Artificial Intelligence entering into legal conversations?
There are at least three ways AI is entering the courtroom.
First there are cases where artificial intelligence itself is an issue. For example, we have a lot of criminal cases that deal with police surveillance and deployment using AI. This raises such questions as “When does AI become a high-tech version of racial profiling?” and “When is it a legitimate law enforcement tool?” and “When does AI simply confirm people's prejudices?”
Second, AI is being used to mine vast troves of information that were previously too complex and too voluminous to review manually. AI changes the “reasonable” calculation when it comes to reviewing huge volumes of information. For example, there's no possible way that human beings -- even a large group of extremely well-trained human beings – can accurately go through masses of emails and text messages and videos. And if there are questions about whether AI tools produce the right results, then courts start looking behind the curtain, and ask about the process used to produce a specific set of documents. That's very difficult to do if the process is an AI black box -- a complex algorithm that nobody understands. Sometimes even the developers can’t explain these black boxes adequately to the court, because once they’ve unleashed the algorithm, it begins to teach itself and evolve.
Third, AI is being used by parties to actually predict what the courts are going to do. The past decisions of a particular judge or a particular court are now analyzed using AI, and the results are used to map out strategy. In the old days, back in the 1970s, and 80s, we kept paper files in my law firm organized by judge so that if you were going to appear before a specific judge, you went to the file and got an idea of how this judge treated people in the past. So that's nothing new. But now it's become so sophisticated that judges are becoming suspicious that lawyers are using AI for “forum shopping.”
In the eDiscovery arena, there has long been a concept of balancing the information sought with the cost of producing it. Is technology changing that balance?
There is no way that we could possibly use the methods that we were using 50 years ago on our current information. Fifty years ago, you were typically dealing with a box of paper documents, or maybe in a big case, a file cabinet full of documents. But what's a file cabinet full of documents in the electronic world? Today, we have so much more information in so many different forms. In the old days, you'd have a team of paralegals sitting in a warehouse going through documents, living on pizza and Diet Coke, for hours and hours and hours through nights and weekends. How accurate do you think those results were? Not very accurate. But a machine does not need any Diet Coke or pizza, and it will just keep chugging along. And depending on the system you're using, it is improving its accuracy as it's going along.
How do you think the skill set of IG professionals needs to change in the face of all this technology?
Five years from now, the profession that we call “information governance” will be called something else; the labels are always changing. IG professionals today are coming from a variety of different backgrounds. Some of us are coming out of the law and some of us are coming via librarianship. Others are coming from an information technology background. But essentially, we're following the same paths.
We’ve entered a new phase when it comes to information privacy and security. Everything that's gone on during the pandemic with remote work has put real punctuation points on the whole question of information security and privacy, and that will be the theme of my MER presentation in May. I think this is my 26th year for MER.
The MER conference is the best forum in North America for practical discussions of managing information technology. My colleagues in The Sedona Conference understand these issues from a legal viewpoint. We have a lot to learn from the people who are in the trenches, and that’s what MER is all about. We in the legal world can connect with the real world by attending MER and the business attendees at MER get the same quality of legal education that a federal judge would get.
What do you know now that you wish you knew then?
The message to my younger self would be, “You are not invulnerable or immortal. You need to take care of yourself physically and mentally. Eat your vegetables, floss your teeth, get your annual checkup. And when your knees start hurting at the 60-mile point of your 125-mile bike ride, Stop, just stop. The T shirt at the end of the race isn't worth risking knee replacement surgery.”
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