Introduced by Maribel Rivera, VP of strategy and client engagement at ACEDS, the inaugural session of Relativity Fest 2023 kicked off with a comprehensive exploration into the most influential cases coming out of the past year—and how they have defined the current state of case law.
On our journey into case law today, the panel featured three outstanding experts:
- Judge Allison Goddard, United States Magistrate Judge for the Southern District of California
- Professor William Hamilton, senior legal skills professor at the University of Florida Loven College of Law
- Kelly Twigger, founder and principal attorney at ESI Attorneys, CEO and founder of E-Discovery Assistant, and adjunct professor at the University of Colorado Law School
Relativity Discovery Counsel and Legal Education Director David Horrigan moderated the panel.
Case Law Data: 2014-2023
The first topic of the session looked back on the past nine years of case law and trends in data from 2014-2022, and predictions made about 2023.
The number of e-discovery data decisions made each year increased from 2014, reaching an all-time high in 2021. However, those decisions saw a dip in 2022.
Kelly Twigger attributed this dip to the settling down of the COVID-19 pandemic and its disruptions: “During the height of the pandemic, we had a lot more discovery disputes and a lot more discovery decisions. What we’re already seeing for 2023 is more in line with 2022.”
David Horrigan then posed to the panel the issue of proliferation of unpublished opinions, inquiring if they believe that’s a problem.
Professor Bill Hamilton jumped in, answering that on the state level, this proliferation really matters.
“Most of our judges don’t have law clerks and they don’t write opinions,” he explained, detailing how the orally based culture of the courts creates decisions that are handled at hearings on motions rather than with written orders. “Unpublished decisions on the state level are very significant for us.”
Case Law Data: 2022
Showing a graph of the top e-discovery Issues of 2022, David Horrigan asked our panelists: “How in the $%@! did third-party subpoenas rank number four on the list of top e-discovery issues?” and Kelly Twigger provided an easy explanation.
“There is one case out of California with hundreds of third-party subpoenas, so each one goes in as a separate decision into our database, slightly skewing that number as a result of that one case.”
Kelly goes on to explain that what this skewing of third-party subpoenas tells us is that, even when the data is great, you really do have to drill into it.
Artificial Intelligence: Mata v. Avianca, Inc.
Now, the panel dives into some of the cases that have made waves in the past year. The case of Mata v. Avianca, Inc. had a little bit of a media play, as David Horrigan explained to the already-rumbling crowd. A gentleman sued Avianca Airlines over a drink cart that had allegedly injured him as it went down the aisle. However, the source of the crowd’s chattering was that Mr. Mata’s counsel filed a response to a motion to the court using non-existent cases.
Kelly Twigger was first to share some words of wisdom with the audience: “Don’t use ChatGPT as legal research. It is not a legal research tool.”
“I’m not sure if it’s an issue of hallucination,” Kelly continued. “Users of ChatGPT need to make sure that the tool being used is incorporating decisions that come directly from the court.”
The panel then discussed whether they think lawyers should or should not use ChatGPT and shared that it can be a very good tool for editing work, making briefs spiffier and, overall, increasing lawyers’ efficiency for their clients.
Judge Goddard then added: “The ChatGPT hallucinations are pretty easy to detect and, eventually, we’ll have software that can call out cases that aren’t real. But ... we have been dealing with lawyer hallucinations since the beginning of the law and they happen all the time!”
Courts have to deal with verification regardless of source material, and legal professionals need not panic about ChatGPT hallucinations—those are obvious. What worried the panel more were those that are hard to verify.
David Horrigan poses a question to Bill Hamilton, asking if students are embracing this technology more than the rest of us?
Professor Hamilton explained:
As a law school, we’re engaged in the process of teaching our students the law and how to engage with the law. Teaching them how to write well and write persuasively, how to argue well and how to argue persuasively.
Having ChatGPT can absolutely be wonderful, but the students have to be able to judge the quality of the results that come out of these tools. You can’t have individuals using these tools that don’t understand what a good research paper is, what good writing looks like, what good arguments sound like.
We don’t want our students using these tools in the first year because it can corrupt their skill set. Just as we continue to teach students how to multiply in third grade although calculators exist, because we want them to know how to multiply! It doesn’t work to impair our students early. We have to train them to make these kind of judgment calls and ChatGPT doesn’t do that.
Emojis: In re Bed Bath & Beyond Corp. Sec. Litig.
From emoticons to emojis, these symbols have evolved beyond showcasing happiness, sadness, angriness, and winky face. The assigned meaning dictionary of the language of emojis is exactly what another case the panel discussed touches on.
Some meanings are easy to decipher and some are only known to a select group of people who have assigned a specific meaning to it. For example:
Under scrutiny in the case, in the waning days of Bed Bath & Beyond as a brick-and-mortar store, Mr. Cohen tweeted the below message, indicating from his use of a smiling moon emoji that he believed the stock was still going to “shoot to the moon.”
Following this tweet, Cohen immediately sold off his 10 percent share of Bed Bath & Beyond and made $68 million. What might have appeared as a harmless emoji to the “out” group, the unlucky “in” group interpreted as a fraudulent misrepresentation of how Bed Bath & Beyond was performing. Involved in this case was a discussion of whether this tweet constituted an endorsement from someone who wanted to sell of his shares before the cookie crumbled.
Kelly Twigger shared that context is really important with emojis, stating that meme investors do fully understand what the moon means—so, therefore, it was a direct communication with them.
The panel discussed that, when emojis are sent, it is a matter of interpretation from both the sender and the receiver. As reported by Relativity, we are starting to see an exponential increase of short message data formats in e-discovery cases; in fact, it is expected to surpass the amount of email data in the Relativity ecosystem by 2024.
Professor Hamilton, in detailing the demographic of students he teaches at the University of Florida, said, “This is the shortcut generation when it comes to communication. Of course, you have to understand the context. What’s so great about it is that it’s a revealing communication, it’s contemporary and emotionally laced, and that gets us to the truth of everything.”
The panel, discussing the rise of emoji use, shared that they have been dealing with emojis on the criminal side for quite some time. People do get convicted off of emojis, and what’s interesting is that a lot of what we see in the development of e-discovery case law often comes from the criminal side. Kelly Twigger shared that what arises as an issue on the criminal side then often moves into an issue on the civil discovery side.
U.S. v. Bankman-Fried
In the panel’s exploration of the case of U.S. v. Bankman-Fried, where the defendant in his eight-count indictment was charged with defrauding customers, lenders, and investors, was also faced with the question of allowing ephemeral app use throughout the trial.
Judge Goddard interjected for Fest attendees that “[The use of ephemeral apps] is a huge jury problem!”
She continued to explain that, if a jury hears that a defendant deliberately selects an app or platform where all of the messages can disappear, it can create suspicions for why they chose it in the first place.
Professor Hamilton added the question: “Who uses messages that disappear? On the positive side, maybe a journalist looking to keep a story confidential but, for the most part, it’s people who have reason to be secretive.”
The panel then underscored that the use of ephemeral apps creates a new issue for discovery work. Confronting large amounts of information that can disappear requires the use of tools that can create a timeline of conversations with identifiable gaps to represent deleted or missing data.
Learning from the Past, Looking toward the Future
These are just some of the largest trends that have defined the state of e-discovery case law in 2023. As always, lawyers and legal practitioners absolutely must stay on top of case law happenings to understand how the practice of law is changing—and how they must adapt accordingly.
If you didn’t get a chance to see this year’s session, a recording is available for on-demand viewing here.