POST-MODERN PRE-TRIAL PRACTICE

Kip Nelson & Whit Pierce

Smith Moore Leatherwood LLP

I. INTRODUCTION

Under the North Carolina Rules of Professional Conduct, a lawyer must be competent to

handle a legal matter. N.C. Rules of Prof’l Conduct r. 1.1. “Competent representation requires

the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the

representation.” Id. This duty requires attorneys to familiarize themselves with both the facts

and the law to make a cogent argument.

But the duty of competence entails much more than that. In particular, “[t]o maintain the

requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its

practice, including the benefits and risks associated with the technology relevant to the lawyer’s

practice.” Id. cmt. 8. Thus, “competent” attorneys are those who are aware of (and utilize)

changes in technology. This is no simple feat. “Legal rules and procedures, when placed in

conjunction with ever changing technology, produce professional challenges that attorneys must

meet in order to remain competent.” Cal. State Bar Standing Comm. on Prof’l Responsibility &

Conduct, Formal Op. 2015-193. Of course, maintaining such knowledge is also just good

advocacy. “We ignore at our peril the world that we live in where almost every case, even small

ones or those involving disciplines not typically associated with high-level analytics issues,

involves electronic or digital data.” Megan Crowley-Hsu, E-Discovery Trends: 2014 Year in

Review, PRACTICAL LAW (Nov. 15, 2014). Consider the following examples:

A. Social Media

The North Carolina State Bar has specifically stated that “relevant technology” under the

comment to Rule 1.1 includes social media. N.C. State Bar, Formal Ethics Op. 5 (2015). Thus,

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attorneys have “a general duty to be aware of social media as a source of potentially useful

information in litigation, to be competent to obtain that information directly or through an agent,

and to know how to make effective use of that information in litigation.” Id. A professional

guidance committee from another state has similarly stated that “in order to provide competent

representation in accordance with Rule 1.1, a lawyer should (1) have a basic knowledge of how

social media websites work, and, (2) advise clients about the issues that may arise as a result of

their use of these websites.” Phila. Bar Ass’n Prof’l Guidance Comm., Informal Op. 2014-5.

B. Electronic Discovery

The world of “e-discovery” is no longer uncharted territory. “The ethical duty of

competence requires an attorney to assess at the outset of each case what electronic discovery

issues, if any, might arise during the litigation, including the likelihood that e-discovery will or

should be sought by either side. If it is likely that e-discovery will be sought, the duty of

competence requires an attorney to assess his or her own e-discovery skills and resources as part

of the attorney’s duty to provide the client with competent representation.” Cal. State Bar

Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. 2011-004.

As one judge succinctly put it, “[p]rofessed technological incompetence is not an excuse

for discovery misconduct.” James v. Nat’l Fin. LLC, No. 8931-VCL, 2014 WL 6845560, at *12

(Del. Ch. Dec. 5, 2014). In James, despite the attorney’s protestations that he was “not computer

literate” and “need[ed] a secretary to help [him] turn on the computer,” the court found that the

attorney and the party he represented “willfully disregarded their discovery obligations.” Id.

“Deliberate ignorance of technology is inexcusable. If a lawyer cannot master the technology

suitable for that lawyer’s practice, the lawyer should either hire tech-savvy lawyers tasked with

responsibility to keep current, or hire an outside technology consultant who understands the

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practice of law and associated ethical constraints.” Id. (quoting Judith L. Maute, Facing 21st

Century Realities, 32 MISS. C.L. REV. 345, 369 (2013)).

This obligation entails more than simply being aware of what technology exists. For

example, one justice on the Supreme Court of North Dakota explained that attorneys must be

aware of what exactly is “evidence” when an electronic document is admitted into evidence.

State v. Ratliff, 849 N.W.2d 183, 195 (N.D. 2014) (Crothers, J., specially concurring). Does that

include the document’s metadata? Are the judge and jury permitted to look behind the face of

the document?

C. Data Storage

“A lawyer engaged in cloud computing must have a basic understanding of the

technology used and must keep abreast of changes in the technology. A competent lawyer must

guard against risks inherent in the practice of cloud computing.” Ala. Bar Ass’n, Ethics Op.

2014-3; see also Ill. State Bar Ass’n, Op. 16-06 (2016) (“[L]awyers who use cloud-based

services must obtain and maintain a sufficient understanding of the technology they are using to

properly assess the risks of unauthorized access and/or disclosures of confidential information.”);

Tenn. Formal Ethics Op. 2015-F-159 (“While competence does not require a lawyer to become

an expert in data storage, it does require that the lawyer remain aware of how and where data are

stored and what the provider service agreement says.”).

Similar obligations arise with respect to data maintained on hard drives and storage

media. “If a lawyer chooses to use these Devices that contain Storage Media, the lawyer has a

duty to keep abreast of changes in technology to the extent that the lawyer can identify potential

threats to maintaining confidentiality. The lawyer must learn such details as whether the Device

has the ability to store confidential information, whether the information can be accessed by

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unauthorized parties, and who can potentially have access to the information.” Fla. State Bar

Ass’n, Op. 10-2 (2010).

D. Self-Assessment

As an attorney, how technologically “competent” are you? Ask yourself these questions:

• Can I search for and access a potential juror’s Facebook page or personal blog to

identify bias against my client?

• Can I access and review my client’s Facebook page to properly and accurately respond

to discovery requests?

• Can I use online research tools to help formulate legal strategies?

• Can I use Google or other internet search tools to ascertain an opposing party’s

whereabouts for service?

• Can I search online databases for prior litigation history of potential jurors?

• Can I access and search social networking sites’ potential evidence?

If the answer to any of these questions is “no,” you may want to talk to the lawyers whose cases

inspired these questions. “Their failure to capably do these tasks on behalf of their clients was

criticized by the courts in their states, and in some cases resulted in prejudice to those clients.”

Charles J. Northrup, A Lawyer’s Duty to Understand Technology: The Forest and the Trees, 102

Ill. B.J. 196 (2014).

With this background in mind, the remainder of the manuscript describes some specific

areas in which technological developments have changed and continue to change the practice of

law. Part II discusses changes to Federal Rule of Civil Procedure 26. Part III discusses recent

decisions interpreting the requirements of privilege logs. Part IV discusses the findings and

conclusions from the Technology Committee of the North Carolina Commission on the

Administration of Law and Justice. Part V discusses emerging research tools. Finally, Part VI

discusses how artificial intelligence is being and will be used in the legal profession.

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II. RULE 26

It is time, once again, to issue a discovery wake-up call to the Bar in this District.

. . . The December 1, 2015 amendments to the Federal Rules of Civil Procedure

are now 15 months old. It is time for all counsel to learn the now-current Rules

and update their “form” files.

Fischer v. Forrest, No. 14 Civ. 1304, 2017 WL 773694, at *1–3 (S.D.N.Y. Feb. 28, 2017).

By now, most federal practitioners know that the federal discovery rules were amended in

December 2015. Perhaps the most prominent change to the rules was the re-focus on

“proportionality” in discovery. Under the amended rules, “[p]arties may obtain discovery

regarding any nonprivileged matter that is relevant to any party’s claim or defense and

proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1) (emphasis added). Under that

“proportionality” standard, courts and litigants must consider “the importance of the issues at

stake in the action, the amount in controversy, the parties’ relative access to relevant information,

the parties’ resources, the importance of the discovery in resolving the issues, and whether the

burden or expense of the proposed discovery outweighs its likely benefit.” Id.

In previous iterations of Rule 26, there was similar proportionality language, but it was

sunk in the backwaters of Rule 26(b)(2)(C)(iii). The original proportionality language was added

to the Rule to “deal with the problem of over-discovery,” to “guard against redundant or

disproportionate discovery by giving the court authority to reduce the amount of discovery that

may be directed to matters that are otherwise proper subjects of inquiry,” and to “encourage

judges to be more aggressive in identifying and discouraging discovery overuse.” Fed. R. Civ. P.

26 Advisory Committee Notes—1983 Amendment. By moving the proportionality language to

the front and center, the Rules Committee hoped to reinforce the importance of these

considerations and parties’ obligations to consider proportionality in propounding and

responding to discovery. See Fed. R. Civ. P. 26 Advisory Committee Notes—2015 Amendment.

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In addition to the proportionality language, the amended Rule 26 includes two other

significant changes to the scope of discovery. First, it eliminates the court’s ability to “order

discovery of any matter relevant to the subject matter involved in the action,” such that discovery

is cabined to the claims and defenses in the pleadings. Second, the amendment eliminates the

phrase “reasonably calculated” from the rule, which “ha[d] been used by some, incorrectly, to

define the scope of discovery.” Id.

Generally speaking, the defense bar strongly favored these amendments. Arguments in

favor of the amendments often went something like this:

Burdensome litigation costs are an unnecessary drain on American businesses

who are already deeply impacted by economic hardships. Today’s overly broad

discovery regime imposes a heavy burden with very little corresponding benefit.

Without any sacrifice to the pursuit of justice, the modest revisions to the rules

you propose will go a long way towards reducing overall costs and improving

federal litigation practice. These are modest revisions. They’re modest, they’re

incremental, they’re common sense. They’re not radical. They’re not draconian.

Trans. of Proceedings, Public Hearing on Proposed Amendments to the Federal Rules of Civil

Procedure Judicial Conference Advisory Committee on Civil Rules 45–46, Washington, D.C.

(Nov. 7, 2013). Leading up to the amendments, U.S. Senator Jon Kyl spoke about discovery’s

“impositional function,” by which a party can use discovery to make sweeping requests, drive up

costs for the other side, and “in some cases forc[e] settlements in situations where it probably is

not appropriate.” Trans. of Proceedings, Public Hearing on Proposed Amendments to the

Federal Rules of Civil Procedure Judicial Conference Advisory Committee on Civil Rules 46–47,

Phoenix, AZ (Jan. 9, 2014). Some voices from the plaintiffs’ bar expressed a contrary view:

[M]oving the proportionality analysis to the fore creates a perverse incentive for a

defendant to make any potentially incriminating information as burdensome and

as expensive as possible to locate and collect. Then the defendant may not have

to produce it in litigation. They get to keep their skeletons hidden, and this is

certainly not going to make justice more efficient or less expensive.

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Trans. of Proceedings, Public Hearing on Proposed Amendments to the Federal Rules of Civil

Procedure Judicial Conference Advisory Committee on Civil Rules 30, Washington, D.C. (Nov.

7, 2013).

A year and half later, what have we learned? Well, unscientific searching on Westlaw

suggests that from 2015 to 2016 there was a roughly six-fold increase in the number of federal

opinions that cite the proportionality requirement from Rule 26.1 Other (probably more

illuminating) sources say that proportionality opinions increased roughly sixty percent from 2015

to 2016. Ediscovery Case Law: New FRCP Amendments Drive 60 Percent Increase in

Proportionality Opinions, KROLLONTRACK (Dec. 8, 2016),

https://www.krollontrack.com/resources/press/details/64997/2016-ediscovery-case-law-new-

frcp-amendments/. Whatever the actual statistics are, it appears that proportionality is a hotter

topic than it used to be. In addition, a body of case law has started to develop on these

amendments, and there are some clear takeaways:

• Remove “reasonably calculated” from your discovery vocabulary. The Rules Committee

deleted that language from Rule 26, and courts appear to be growing impatient with litigants

who rely on the phrase. See, e.g., In re Bard IVC Filters Prod. Liab. Litig., 317 F.R.D. 562,

564 & n.1 (D. Ariz. 2016) (listing cases in which the phrase was incorrectly invoked, and

noting that “[o]ld habits die hard”).

• Bear in mind the actual scope of discovery that Rule 26 expressly sets forth: “Parties may

obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or

defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). That is, proper

1 Searching Westlaw for (“rule 26” /s proportional!) & DA(aft 12-31-2014 & bef 01-01-2015)

returns eighty-seven opinions, while searching (“rule 26” /s proportional!) & DA(aft 12-31-2015

& bef 01-01-2017) returns 520 opinions.

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discovery is (1) nonprivileged, (2) relevant to a claim or defense, and (3) proportional to the

case.

• There are six proportionality factors, not just one: (1) the importance of the issues at stake,

(2) the amount in controversy, (3) the parties’ relative access to relevant information, (4) the

parties’ resources, (5) the importance of the discovery in resolving the issues, and (6) the

burden or expense of the proposed discovery in relation to its likely benefit. If you focus on

only one of those factors (for example, burden or expense), as litigants often do, your

chances of success will decrease. See, e.g., Schultz v. Sentinel Ins. Co., No. 4:15-CV-04160-

LLP, 2016 WL 3149686, at *9 (D.S.D. June 3, 2016) (granting a motion to compel when the

defendant focused on burdensomeness and failed to address the other proportionality factors).

• You are more likely to win the proportionality debate if you get specific. For example, if you

lodge a burdensomeness objection, be prepared to lay out the volume of records, the retrieval

process, and the like. See, e.g., Arrow Enter. Computing Sols., Inc. v. BlueAlly, LLC, No.

5:15-CV-00037-FL, 2016 WL 4287929, at *2 (E.D.N.C. Aug. 15, 2016) (“The . . .

Defendants’ objection to Arrow’s fourth interrogatory is nothing more than a boilerplate

objection. The response merely recites the amended version of Rule 26(b)(1) of the Federal

Rules of Civil Procedure and fails to specify why the . . . Defendants believe that the request

is not proportional to the needs of the case. Therefore, the court deems the objection to have

been waived and the . . . Defendants shall provide a full response to Interrogatory 4.”); see

also Fed. R. Civ. P. 26 Advisory Committee Notes—2015 Amendment (“Nor is the change

intended to permit the opposing party to refuse discovery simply by making a boilerplate

objection that it is not proportional.”). And if you object to a discovery request on the basis

of proportionality, be ready to suggest how the request might be made proportional.

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• Some courts might be receptive to a proportionality argument that is based on a factor not

expressly enumerated in Rule 26(b), such as confidentiality. See, e.g., Pertile v. Gen.

Motors, LLC, No. 1:15-cv-00518, 2016 WL 1059450, at *2–5 (D. Colo. Mar. 17, 2016)

(denying the plaintiff’s discovery requests for protected trade secrets, noting that “[r]elevance

has never been the only consideration under Rule 26,” and concluding that the defendant’s

confidentiality concerns “outweighed the plaintiff’s need for the information”).

III. PRIVILEGE LOGS

Rule 26 of the North Carolina Rules of Civil Procedure provides a way for a party to

claim that a document is privileged. To do so, the party must (1) expressly make the claim, (2)

describe the nature of the document or communication, and (3) do so in a manner that, without

revealing information that is itself privileged or protected, will enable other parties to assess the

claim. N.C. Gen. Stat. § 1A-1, Rule 26(b)(5)(a); see also Fed. R. Civ. P. 26(b)(5)(A) (providing

similar requirements under the Federal Rules). How much detail is required on a privilege log?

Is it sufficient to simply identify a category of documents and make broad assertions about

potentially relevant privileges?

The North Carolina Court of Appeals recently provided an in-depth analysis of this issue

in Sessions v. Sloane, 789 S.E.2d 844 (N.C. Ct. App. 2016). The underlying dispute involved a

failed government contract. The defendants produced some documents but withheld others

based on their assertions of attorney-client privilege, work product protection, and joint defense

privilege. Their accompanying privilege log looked like this:

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Document Document

Number Date Author Recipient Description Privilege

CCPRIV000016 6–09–08 Tracey

Kelly Defendants

Email created in

anticipation of

litigation and legal

advice

Work Product

Doctrine; Joint

Defense Privilege

CCPRIV000019 6–09–08 Tracey

Kelly Defendants

Email created in

anticipation of

litigation and legal

advice

Work Product

Doctrine; Joint

Defense Privilege

CCPRIV000020 5–15–08 Phillip

Sloane

Defendants

and Jack

Strauch

Email seeking or

containing legal

advice

Attorney-Client

Privilege

CCPRIV000021 5–18–08 Phillip

Sloane Jack Strauch

Email seeking or

containing legal

advice

Attorney-Client

Privilege

Upon the plaintiff’s motion to compel, the trial court ordered the defendants to produce

some of the documents that had been withheld. On review, the Court of Appeals provided

several important reminders:

1) A blanket, general objection to a document request is considered to be frivolous

or insubstantial. To assert a privilege, objections should be made and established on a

document-by-document basis.

2) The party asserting the privilege has the burden to show that the document is

protected.

3) As such, that party needs to take every necessary step to ensure that the court has

adequate information to assess the assertion of privilege.

4) Privilege decisions are discretionary and are reviewed for abuse of discretion.

In Sessions, the defendants submitted to the trial court their privilege log and an affidavit

describing their assertion of work product protection and the joint defense privilege. However,

they did not formally request in camera review of the documents and in fact did not even bring

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the documents to the hearing. The privilege log “on its face lacked sufficient evidence for the

trial court to assess their claim of privilege.” Thus, the trial court was within its discretion in

ordering the documents to be produced.

Further, the defendants’ affidavit was insufficient because it did not explain how each

document was protected by the work product doctrine. The affidavit established what the

defendants believed to be the date of anticipated litigation. However, they “did not meet their

burden to show the specific emails at issue were actually prepared or obtained because of the

prospect of litigation.”

The Court of Appeals explained that the “better practice” when asserting a privilege is “to

submit a motion, affidavit, privilege log, request for findings of fact and an in camera review

together with a sealed record of the documents to be reviewed.” Without the documents

themselves, “there is no evidence to determine if the claims of privilege are bona fide.” The

defendants took a “strategic risk” in not submitting the documents—and lost that gamble.

The rule is similar in federal court. See, e.g., United States v. $43,660.00 in U.S.

Currency, No. 1:15CV208, 2016 WL 1629284, at *5 n.9 (M.D.N.C. Apr. 22, 2016) (“To validly

assert a privilege, a party must expressly state the privilege in response to the particular

discovery request involved and serve with the discovery responses a signed privilege log.

Failure to timely serve a duly signed privilege log meeting the requirements of Rule 26(b)(5)(A)

shall be deemed a waiver of the protection otherwise claimed.”). Thus, the Sessions court is not

the only one to acknowledge that the traditional, barebones privilege log is insufficient. See,

e.g., Vision I Homeowners Ass’n v. Aspen Specialty Ins. Co., No. 08-81211-Civ., 2009 WL

2477524, at *2 (S.D. Fla. July 7, 2009) (finding that a privilege log was insufficient when it

merely stated that each document was a “detail invoice for legal services rendered, including

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descriptions of legal services rendered”); Guzman v. Irmadan, Inc., 249 F.R.D. 399, 401 (S.D.

Fla. 2008) (stating that privilege objections should “identify the specific nature of the privilege

being asserted, as well as identifying such things as the nature and subject matter of the

communication at issue, the sender and receiver of the communication and their relationship to

each other, among others”). The showing must be made for each document. Robinson Mech.

Contractors Inc. v. PCT Grp. Holding Corp., No. 1:15-CV-77 SNLJ, 2017 WL 2021070, at *3

(E.D. Mo. May 12, 2017). “A party simply cannot claim privilege and refuse to provide a

privilege log; indeed, some courts have found that doing so results in waiver of the privilege.”

Kotsias v. CMC II, LLC, No. 1:15 CV 242, 2016 WL 6841080, at *2 (W.D.N.C. Nov. 21, 2016).

Judges are not happy when they have no way to decipher the contents of allegedly

privileged information. For example, Judge Boyle wrote that a privilege log was “of little help to

the Court”: “It lacks the dates of the documents that are allegedly privileged. More

problematically, it merely restates the boilerplate language . . . for privilege without giving the

Court any way to ascertain whether, in fact, the documents are privileged.” United States v. Von

Biberstein, No. 7:14-CV-175-BO, 2015 WL 1781498, at *2 (E.D.N.C. Mar. 25, 2015). The

court required disclosure of documents because “[w]ithout further context,” the court could not

“determine whether the documents themselves [were] privileged” and was “constrained to

construe the privilege narrowly.” Id. Notably, the party in that case offered to produce the

documents for in camera review2, but the court wanted a privilege log in order to evaluate the

privilege assertion. Id. at *2 n.1.

2 Of course, a trial court is not required to conduct an in camera review even when requested.

U.S. ex rel. Hamrick v. GlaxoSmithKline LLC, 814 F.3d 10, 17-18 (1st Cir. 2016) (affirming the

trial court’s discretionary decision not to conduct an in camera review of allegedly privileged

documents).

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The Fifth Circuit recently reached a similar conclusion. See EEOC v. BDO USA, LLP, --

F.3d --, 2017 WL 1746035 (5th Cir. May 4, 2017). The court recognized that “there is some

variation as to the level of detail courts have found to be sufficient.” Nevertheless, the court

found that the employer’s privilege log in this particular case was insufficient to establish a

prima facie showing of attorney-client privilege. “Determining whether a particular

communication is subject to a privilege should not be a guessing game for the court.” Thus,

“[b]lanket claims of privilege, generalized descriptions of a document, and conclusory

statements that a document is privileged are not sufficient to prove a privilege claim.” And

“simply describing a lawyer’s advice as ‘legal,’ without more, is conclusory and insufficient to

carry out the proponent’s burden of establishing attorney-client privilege.” Importantly, the

court also found that the privilege log was too vague because it did not explain that the

communications were made in confidence.

Therefore, the Sessions opinion also serves as a more general reminder: the court needs

to see relevant documents. The Court of Appeals recently reaffirmed this principle in Bray v.

Swisher, No. COA16-928, 2017 WL 1650131 (N.C. Ct. App. May 2, 2017). There, the

defendant tried to appeal from a trial court order that required disclosure of documents related to

the termination of the plaintiff’s employment. But the defendant did not provide the documents

to the Court of Appeals. Without any way to review the actual documents, the court presumed

that the trial court acted correctly and affirmed the order. Id. at *3-4; see also Bodie v. Bodie,

239 N.C. App. 281, 286, 768 S.E.2d 879, 882 (2015) (“Where the record is silent on a particular

point, we presume that the trial court acted correctly.”).

Last year, the Court of Appeals provided additional guidance on this process. Friday

Invs., LLC v. Bally Total Fitness of the Mid-Atl., Inc., 788 S.E.2d 170 (N.C. Ct. App.), disc.

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review allowed, 793 S.E.2d 685 (N.C. 2016). There, the trial court granted the plaintiff’s motion

to compel documents that the defendants asserted were protected by a joint defense privilege.

After the record on appeal was settled, the defendants filed a motion with the Court of Appeals to

submit documents under seal. The court rejected the motion as “improper, untimely, and

unfairly prejudicial.” The defendants should have asked the trial court to seal the records for

appellate review or ask the Court of Appeals to order the records be sent from the trial court

under seal.

When the appellate court has the documents available, it is in a better position to make

privilege determinations. See, e.g., Estate of Ray v. Forgy, 783 S.E.2d 1, 9 (N.C. Ct. App. 2016)

(reversing an order compelling disclosure because, after “carefully review[ing] the subject

documents,” the Court of Appeals was “satisfied” that the defendants had “fulfilled their burden

of demonstrating that the subject documents are privileged”); see also In re United States, -- F.

App’x --, 2017 WL 406243 (Fed. Cir. Jan. 30, 2017) (granting a petition for writ of mandamus in

part to prohibit disclosure “[u]pon review of the documents at issue”); Gilmore v. Palestinian

Interim Self-Gov’t Auth., 843 F.3d 958, 968 (D.C. Cir. 2016) (affirming the district court’s

decision “[h]aving reviewed the twenty-five pages” of documents at issue).

Further, even a privilege log may not be enough. The First Circuit found that a party’s

explanation “likely sufficed as a privilege log” but did not provide the trial court “with any

feasible means of understanding why each document is privileged” when there was “no affidavit

explaining who is a lawyer, who is a proper client representative, and why the communication is

properly within the scope of the privilege.” Rowe v. Liberty Mut. Grp., Inc., 639 F. App’x 654,

657 (1st Cir. 2016). The party there “basically filed a memo setting forth general factors for

assessing claims of privilege, and then let the district court go through 2,000 pages trying to

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figure out how these factors applied to each document.” Id. It is not surprising that the court did

not look favorably on that approach.

Privilege logs that have been accepted generally include some level of detail. For

example, the U.S. District Court for the Eastern District of North Carolina found that a log was

“sufficiently specific to allow Plaintiff to determine the basis for the privilege asserted” when it

contained descriptions such as “Memo made at direction of counsel and sent to counsel for

purpose of [seeking] legal advice regarding medical procedure” and “Email requesting advice of

counsel regarding FDA request.” Spilker v. Medtronic, Inc., No. 4:13-CV-76-H, 2015 WL

1643258, at *6 (E.D.N.C. Apr. 13, 2015).

In sum, a general, nondescript privilege log is no longer acceptable under Rule 26 in

North Carolina’s state or federal courts. If you truly want to protect documents as privileged,

consider making a more detailed log on a document-by-document basis. If there is a later

dispute over the documents, the effort will be well worth it.

IV. TECHNOLOGY COMMITTEE REPORT

In 2015, Chief Justice Mark Martin of the Supreme Court of North Carolina convened a

distinguished, sixty-five-member, multidisciplinary group dubbed the North Carolina

Commission on the Administration of Law and Justice (“Commission”). The Commission’s

charge was to perform a comprehensive review of North Carolina’s court systems and make

recommendations to improve the administration of justice. On March 15, 2017, the Commission

presented its Final Report to Chief Justice Martin.

One of the Commission’s principal areas of focus was technology in the court system.

As part of the Commission’s Final Report, the Commission’s Technology Committee published

a thorough report on the current state and future direction of technology in the North Carolina

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court system. Frankly, it is difficult to condense the Technology Committee’s report because

nearly every sentence makes a valuable point. Nonetheless, what follows is an attempt at a

summary.

The Technology Committee opened its report by noting that “[i]t is critical for North

Carolina’s Judicial Branch to employ additional technology to achieve its constitutionally

mandated mission. The implementation of technological change brings with it the promise of a

truly uniform statewide court system.” According to the report, North Carolina’s state courts

handle roughly 2.7 million cases each year, and more than four miles of shelving is needed to

house new case files each year. By and large, the court system is paper driven—to the tune of 30

million new pages of documents every year—and court employees spend a lot of time and

resources managing storage issues, moving boxes, and manually entering data.

As a framework, the Technology Committee identified nine “initiatives” to address the

court system’s technology needs: governance, metrics, reporting and analytics, enterprise

information management (i.e., electronic document storage and management), integrated case

management (i.e., an electronic means to record, track, and manage events from case initiation

through case disposition), e-filing, financial management, electronic public access, and “judicial

workbench” (i.e., a sort of electronic case-management dashboard for courthouse employees).

One of these initiatives—e-filing—will significantly affect the practice in this State by

eliminating or greatly reducing the need to run down to the courthouse to make a filing.

Eventually, e-filing will allow anyone involved with the court system (members of the public,

attorneys, and court employees) to submit documents to the court electronically. As of this

writing, e-filing is only an option in the appellate courts, the North Carolina Business Court, and

certain types of cases in four “pilot sites” in North Carolina (Alamance, Chowan, Davidson, and

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Wake Counties). In any event, system-wide e-filing will not materialize independent of the other

initiatives. For instance, it cannot exist without viable information-management systems. The

same goes for electronic public access, which will relieve an enormous burden on court clerks—

who spend a great deal of their time fulfilling the public’s requests for documents. The

underlying systems will have to be in place before the public will be able to conduct online

searches of publicly available court records.

In addition to issuing a report, the Technology Committee collaborated with the

BerryDunn consulting firm to create an in-depth “strategic plan” for the court system. That

thirty-five-page plan expounds on the principles that the Technology Committee set forth in its

report, and it evaluates the report’s various initiatives in terms of complexity and relative

priority. Interestingly, the strategic plan says that e-filing will be relatively simple to implement

once the underlying systems are in place, and it puts e-filing squarely in the middle of the other

initiatives in terms of relative priority—at five out of nine. As for electronic public access, the

strategic plan says that it will be moderately difficult to implement, and it ranks seven of nine in

terms of priority. The plan’s top priority is, quite sensibly, the implementation of a technology

governance process. To the likely dismay of the berobed, the judicial workbench brings up the

rear. According to the strategic plan, all of these initiatives will take about seven years to

implement. In the opinion of these authors, the changes really cannot come too soon.

V. NEW RESEARCH TOOLS3

With the advent of additional research tools comes a greater responsibility to engage in

thorough research. Now, “legal research is not local. Authorities from other jurisdictions, the

congressional record, scientific journals and position papers are all essential in the researcher’s

3 This portion of the manuscript is largely taken, with permission, from Jennifer L. Behrens, Next

Generation Research Tools (NCBA Appellate Practice CLE, Sept. 2016).

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arsenal.” Becker v. Murphy Oil Corp., No. 86-960, 2012 WL 1379466 (La. Dist. Ct. Feb. 22,

2012). Lexis and Westlaw still dominate the U.S. legal research market, but both services look

and operate differently than they did just a few years ago. In addition, several new legal research

services have emerged in the last decade, with a few of these poised to become major players in

your research future.

This portion of the manuscript addresses some of these changes in legal research.

Section A introduces some of the newer services available to attorneys and highlights key

features of each. Section B reviews options for using legal research services, following the rise

in popularity of more “Google-like” natural language, single search boxes. Section C outlines

alternative sources for docket research. Section D provides options for accessing secondary

sources, such as legal journal articles and treatises. Finally, Section E offers tips for keeping

your legal research results and skills up to date, as these services continue to evolve.

A. Legal Research Services: The Next Generation

1. Bloomberg Law

URL: http://www.bloomberglaw.com

Description: Already well-established for its research products within the financial market,

Bloomberg’s separate legal research service was launched in 2011. Bloomberg Law includes

federal and state primary law, secondary sources from BNA and other publishers (including the

American Bar Association, Practising Law Institute, and North Carolina CLE publications), and

search interfaces for EDGAR and federal and state court dockets. Bloomberg Law case results

may be updated with the in-house “BCite” citator. Bloomberg Law requires advanced (Boolean)

searching and lacks some basic secondary sources such as legal encyclopedias, but it is

particularly strong for business/corporate law research and docket research.

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Cost: $495 per user per month. Law student passwords may be used for commercial purposes

during summer employment, and access continues for six months after graduation.

2. Fastcase

URL: http://www.fastcase.com

Description: Available as a free bar association membership benefit in half of the states

(including North Carolina), Fastcase provides federal and state primary law, with widely varying

state appellate case law coverage.4 Fastcase also provides secondary sources from Newsbank

and Wolters Kluwer/Loislaw, and the company has partnered with the database HeinOnline to

provide users with expanded access to law review articles, historical session laws and codes, and

state Attorney General reports. (Fastcase users without an existing subscription to HeinOnline

will see Hein results and abstracts for free, with daily/monthly/annual subscription options for

the full text.) Fastcase’s Authority Check feature examines subsequent citations to case law

results. An “Interactive Timeline,” which visualizes case law search results, is a particularly

interesting feature.

Cost: North Carolina content libraries are free to members of the North Carolina Bar

Association.

3. Ravel

URL: https://www.ravellaw.com/

Description: Ravel was developed by a team of Stanford Law School graduates in 2012 as an

attempt to rethink legal research services in a more visual and analytical presentation. Currently,

the service includes U.S. Supreme Court cases and U.S. Circuit Court of Appeals cases back to

1925, U.S. District Court cases back to 1933, and state cases starting in 1950. In 2015, Ravel

4 Scope of Coverage, FASTCASE, http://www.fastcase.com/whatisfastcase/coverage/ (last visited

May 31, 2017).

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announced a partnership with the Harvard Law Library to digitize historical case law from all

fifty states.5 Currently, the historical state case law collection includes New York, California,

Massachusetts, and Delaware; additional state case law backfiles will be added. Opinions

include a sidebar on “How this page has been cited,” compiling subsequent references to the

opinion in other case law. Ravel’s unique features include visualized search results as well as a

Judge Analytics module that provides insight into a judge’s patterns in rulings and external

influences.

Cost: Free for Open (limited) access. For Advanced access (including Judge Analytics),

individual or enterprise-wide rates are available (https://www.ravellaw.com/plans).

4. Casetext

URL: https://casetext.com/

Description: Developed by Stanford Law School graduates, Casetext provides free access to all

dates of U.S. Supreme Court case law, other U.S. federal court opinions back to 1925, and state

appellate case law generally back to 1950.6 Federal statutes and regulations, as well as selected

state statutes, are also available. Unique features of Casetext include a collaboratively produced

“WeCite” citator and case-specific “Insights” authored by attorneys and law students. The Case

Analysis Research Assistant (CARA) feature allows users to securely upload a brief and receive

suggested additional legal research results.

Cost: “Free forever” for limited Basic account; Casetext Pro, which includes the CARA feature,

offers individual or group rate pricing (https://casetext.com/pricing).

5 Erik Eckholm, Harvard Law Library Readies Trove of Decisions for the Digital Age, N.Y.

TIMES (Oct. 28, 2015), http://www.nytimes.com/2015/10/29/us/harvard-law-library-sacrifices-a-

trove-for-the-sake-of-a-free-database.html. 6 Features, CASETEXT, https://casetext.com/features (last visited May 31, 2017).

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5. Google Scholar

URL: https://scholar.google.com/

Description: Google added access to state and federal court opinions to its Scholar platform in

2008. Its coverage has remained the same since then: “Currently, Google Scholar allows you to

search and read published opinions of US state appellate and supreme court cases since 1950, US

federal district, appellate, tax and bankruptcy courts since 1923 and US Supreme Court cases

since 1791.”7 Opinions include links to subsequent citations in both a “Cited by” listing and a

“How cited” dashboard; these listings include selected secondary sources that are available

through Google Scholar and Google Books. While there are date limitations to the case law

database, particularly for state law, Google Scholar can be a good stop for obtaining a known

citation quickly or for conducting a free preliminary search before entering a premium

subscription research service.

Cost: Free.

B. Plain-English Revolution

When Westlaw and Lexis developed their “next-generation” interfaces WestlawNext

(now known as Thomson Reuters Westlaw) and Lexis Advance, each redesigned site included a

single search box that was similar in appearance to the search engine Google.8 Westlaw, Lexis,

and most newer legal research services offer plain-English, natural language searching, where

users may enter queries in simple keyword form, without specifying a desired relationship

between each term through connectors, such as /s (within same sentence), /p (within same

paragraph), or & (and).

7Content Coverage, GOOGLE SCHOLAR,

https://scholar.google.com/intl/en/scholar/help.html#coverage (last visited May 31, 2017). 8 Jill Schachner Chanen, Wired, 96 A.B.A. J. at 34 (Feb. 2010).

22

Most legal research services now offer their users a choice between natural language

searching or Boolean/terms-and-connectors searching. (The major exception is Bloomberg Law,

where natural language searching is not available.) Natural language searching tends to be the

default search selection, unless users opt into a more advanced Boolean search by entering

connectors.9

While natural language search results are less mathematically precise than

Boolean/terms-and-connectors searching, natural language can sometimes be useful in

identifying relevant results that use alternate forms of entered search terms (plurals, etc.) or

synonyms.

For example, suppose a user is researching the topic of automobile searches by police

that are predicated by a police officer’s mistaken interpretation of the law. A legal researcher

might brainstorm the key three terms for a preliminary search of case law to be mistake, search,

and some variation on the word automobile (vehicle, car, etc.).

A natural language search within a database of U.S. Supreme Court case law for:

mistake search automobile

might return in its result set the opinion for Heien v. North Carolina, 135 S. Ct. 530 (2014), even

though the text of the opinion never actually uses the word “automobile.”

Note, however, that natural language results will vary across databases, and newer and

developing research services may be less predictive in their natural language results. For

example, a natural language search using the word “automobile” (rather than the Court’s actual

language of “vehicle”) returned the Heien opinion only within Westlaw and the “classic” (soon-

9 Note that on Westlaw, very basic search connectors such as AND (&) and OR are not sufficient

to force the system into conducting a full Boolean search. To ensure the searches are run in full

Boolean mode, preface the search with adv: or insert additional Boolean operators.

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to-be-defunct) Lexis.com interface. A natural language search, substituting the Court’s actual

word choice:

mistake search vehicle

successfully retrieved Heien within all of the legal research services discussed above. Variant

grammatical forms of the words actually used in the opinion (e.g., mistaken, searching, vehicles)

would also successfully retrieve Heien.

Inclusion of Heien v. North Carolina using plain/natural language search terms…

In research service… …mistake search automobile …mistake search vehicle

Westlaw Yes Yes

Lexis Advance No Yes

Lexis.com Yes Yes

Bloomberg Law N/A N/A

Fastcase No Yes

Ravel No Yes

Casetext No Yes

Google Scholar No Yes

The following terms-and-connectors search would also ensure retrieval of Heien in any

legal research service that allows Boolean searching, since it includes synonyms for

“automobile” that the courts might use:

mistake /p search /p (automobile or vehicle or car)

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Researchers should be aware of the potential benefits and drawbacks of both natural language

and advanced searching, consult help screens in the online services, and use a combination of

search styles in order to ensure the most comprehensive search results.

C. Expanded Docket Access

Users of PACER (http://www.pacer.gov), the federal courts’ electronic filing repository,

already know the difficulties involved with searching and accessing federal court briefs and other

materials. PACER funds itself through fees for searching and retrieving dockets and documents,

at a cost of $0.10/page and a maximum document fee of $3.00 in most cases. PACER’s search

features are limited, and failed searches add to a user’s bill. Several research services and

websites offer improved search features and document access to PACER materials.

1. Justia Dockets

URL: http://dockets.justia.com

Description: Justia Dockets’ free front-end search to federal court information can be a helpful

resource when beginning any docket research. Users may search by party name, judge name,

court, and nature of suit, and results are available for U.S. District Courts and Circuit Courts of

Appeals back to 2004. Justia provides basic information about a result (including quick, free

access to the docket number and court), with links to the relevant PACER docket (PACER login

required). Justia will also link to the full text of any case documents within PACER that have

been tagged as free (e.g., opinions and orders). This can be a time-saving and money-saving first

step in locating relevant federal docket numbers before incurring charges on PACER.

Cost: Free, with links into fee-based PACER sites. Fastcase offers quick access to Justia

Dockets via its “Search Federal Filings” link.

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2. Bloomberg Law

URL: http://www.bloomberglaw.com

Description: Bloomberg Law’s “Litigation & Dockets” tab includes a search interface for

PACER, as well as search capability for selected state dockets. (North Carolina appellate courts

are available here back to January 2011.) Users may request full-text retrieval of eligible

documents; once a document has been retrieved, it becomes freely available to all Bloomberg

Law researchers in the future.

Cost: Bloomberg Law access is $495/user/month. Docket research incurs additional charges for

retrieval, tracking, and courier service. Educational accounts (unrestricted during law student

summer employment and for six months after graduation) include waived docket search and

retrieval fees, but no courier services.

3. PacerPro

URL: https://www.pacerpro.com/

Description: PacerPro offers improved searching across all PACER sites simultaneously and is

updated in real-time. A separate PACER.gov login is still required, and regular PACER charges

are incurred for searches and retrieval, but downloaded documents are added to an internal

archive that is available to all PacerPro users.

Cost: Free for individual users (allows two case tracks and two bulk downloads per month).

Professional and enterprise-level pricing begins at $20/user/month.

D. Secondary Sources

A major advantage of premium legal research services is built-in access to time-saving

secondary sources, such as legal encyclopedias, topical treatises, and law review articles.

Because the makers of Westlaw, Lexis, and Bloomberg Law have corporate relationships with

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book and journal publishers, their libraries are well-stocked with secondary sources. Smaller

research services have a more limited selection of secondary sources available, if any. For

example, Casetext and Ravel do not include secondary materials at all.

Fastcase includes access to more than 6,000 U.S. newspapers through a partnership with

Newsbank. Fastcase also offers libraries of selected Wolters Kluwer treatises, formerly available

on the now-defunct Loislaw service. Fastcase has also partnered with the makers of HeinOnline

to provide users with access to law review and legal journal articles. This includes historical law

journal articles that pre-date what is available on Westlaw and Lexis, whose article content

generally begins in the early 1980s. Full text of articles requires a separate subscription to

HeinOnline, although searching of article abstracts is free to all Fastcase users.

Some free access to law review and legal journal articles is available through Google

Scholar, which includes an “Articles” search that is separate from its case law content. Google

Books also includes some full-text and “snippet” previews of many legal treatises, although often

views are restricted due to copyright.

The American Bar Association’s Legal Technology Resource Center maintains a Free

Full-Text Online Law Review/Journal Search engine at its website (http://bit.ly/1eONEFL). This

custom search engine includes more than 400 open-access legal journals in its results.

E. Keeping Current

Legal research requires regular upkeep to ensure that important primary law sources have

been found and that their precedential status has not changed. Premium research services

(Westlaw, Lexis, Bloomberg Law) allow users to set automatic alerts for search terms or for

subsequent updates to specific citations. Fastcase also allows users to add search alerts or to

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bookmark search result pages for future reference. Other research services (Casetext, Ravel) do

not offer automatic search or citator alert features at this time.

Researchers may be interested in tracking general web results for a legal topic, party

name, brand name, or even their own name or firm name. Google Alerts

(https://www.google.com/alerts#) offers the ability to locate new search results and deliver them

at a specified interval. This free service is a good way to track new websites and search results

on a particular topic.

Much like the law itself, legal research services are constantly changing: adding new

(and losing old) content, experimenting with search features, and changing user interfaces. A

great resource to keep up with new developments in legal research is the monthly newsletter

Internet Law Researcher, which is available as a print subscription10 as well as full-text online in

Westlaw (GLILR database short name). Regular features include a “Search Engine Update,”

news about legal blogs and mailing lists, and a “Legal App of the Month,” as well as substantive

articles on researching the issue’s theme.

Law library research guides are an excellent resource to learn about new sources and

search strategies for unfamiliar topics. To search across multiple law library guides at once, the

Center for Computer-Assisted Legal Instruction (CALI) custom search engine of ABA-approved

law school websites (http://bit.ly/2atVaHT) is a valuable bookmark for any future research

needs.

VI. ARTIFICIAL INTELLIGENCE

“The law is no more there to provide a living for our lawyers than ill health is

there to provide a living for doctors. It’s not the purpose of the law to keep

lawyers in business.”

10 Product details and pricing are available at http://legalsolutions.thomsonreuters.com/law-

products/Newsletter/Internet-Law-Researcher/p/100001740 (last visited May 31, 2017).

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—Richard Susskind, author and legal technologist

The late computer scientist John McCarthy coined the term “artificial intelligence” way

back in 1955. In common parlance, we use “artificial intelligence” or “A.I.” to refer to machines

that can think and learn. There is a vigorous, ongoing debate about whether A.I. will ultimately

be good or bad for humanity. For instance, the renowned physicist Stephen Hawking has said

that the creation of true artificial intelligence could be “the biggest event in human history,” but

that “it might also be the last.” Stephen F. DeAngelis, Machine Learning: Bane or Blessing for

Mankind, WIRED, https://www.wired.com/insights/2014/06/machine-learning-bane-blessing-

mankind/.

There is a similar debate about the use of A.I. in the law. See, e.g., John McGinnis &

Russell Pearce, The Great Disruption: How Machine Intelligence Will Transform the Role of

Lawyers in the Delivery of Legal Services, 82 FORDHAM L. REV. 3041, 3066 (2014) (arguing that

“the disruptive effect of machine intelligence will trigger the end of lawyers’ monopoly”). Many

observers believe that A.I. is a threat to the profession because A.I. can (or will) do things like

legal research faster and better than attorneys. Some even believe that A.I. is encroaching on the

profession’s most valuable commodity: judgment. See id. at 3056. On the other hand, A.I.

might allow attorneys to re-distribute their time in a cost-effective way. For instance, as A.I.

becomes a bigger part of the profession, it will presumably free attorneys to devote more time to

drafting persuasive papers, counseling clients, and appearing in court.

The debate aside, A.I. is inarguably becoming a part of the legal profession. Since 2012,

more than 280 “legal technology startups” have raised $757 million in capital. Steve Lohr, A.I.

Is Doing Legal Work. But It Won’t Replace Lawyers, Yet., N.Y. TIMES (Mar. 19, 2017). These

days, most lawyers have heard about the concept of “predictive coding” (which refers to

29

computers’ burgeoning ability to identify relevant words and phrases in document review) and

how predictive coding is displacing attorneys in discovery practice (to the great relief of some).

But A.I. is making other inroads as well.

There is a young company called ROSS11 Intelligence that makes a type of A.I. software

that the company advertises as “your brand new artificially intelligent lawyer.” See

http://www.rossintelligence.com/ (last visited May 31, 2017). The software is built on IBM’s

artificially intelligent “Watson” computer system, and it is designed so that lawyers can ask it

natural-language research questions. Once you ask ROSS a question, it reads through the law

and finds answers. An article in the New York Times tells the story of a partner in a Miami law

firm who recently started using ROSS and tested the program against his own abilities. Faced

with a tricky legal issue, the lawyer spent ten hours on legal research before he found the

“perfect” case. ROSS found the same case almost instantly. See Lohr, supra. ROSS is also

developing the ability to write memoranda. If you ask ROSS a legal question, it can send you a

short memo a day later, and it will be “indistinguishable from a memo written by a lawyer.” Id.

(However, by the company’s own admission, ROSS’s rough drafts must be edited by real

humans before they are truly serviceable—hence the one-day delay. Id.) What’s more, ROSS

gets better with experience. After it completes a project, the user can give it a digital “thumbs

up” to tell ROSS how it did. The more you use the software and the more feedback ROSS gets,

the better it gets at its job. And the program is catching on. According to

www.rossintelligence.com, customers include Womble Carlyle, K&L Gates, and Dentons,

among other major law firms.

11 “ROSS” does not stand for anything. See Watson Takes the Stand, THE ATLANTIC, available

at http://www.theatlantic.com/sponsored/ibm-transformation-of-business/watson-takes-the-

stand/283/.

30

Another company, NexLP (short for “next generation language processing”), uses A.I. to

analyze large volumes of data, detect patterns, and draw insights about the future. For example,

NexLP’s A.I. can pore over a large volume of unorganized data, evaluate its content (even

including speech patterns and conversational tone), and detect litigation risks. See Julie

Sobowale, How Artificial Intelligence Is Transforming the Legal Profession, A.B.A. J. (Apr. 1,

2016),http://www.abajournal.com/magazine/article/how_artificial_intelligence_is_transforming_

the_legal_profession. There is certainly plenty of data out there for NexLP to pore over—IBM

claims that “2.5 quintillion . . . bytes of data are created every day, and 90 percent of all data was

created within the last two years.” Id. Jay Leib, co-founder of NexLP, is optimistic about A.I.

He says that “AI classifies and organizes data faster, better and cheaper, and augments human

intelligence. It empowers people to make use of huge amounts of data to make better decisions

and tell better stories.” Id.

In addition to sifting through large volumes of data, lawyers spend a great deal of time

trying to predict outcomes. A.I. can help with that, too. For example, Lex Machina (Latin for

“the law machine”) uses data mining and predictive analytics to forecast the outcomes of

intellectual property litigation. See Michael Mills, Artificial Intelligence in the Law: The State of

Play 2016, THOMPSON REUTERS, available at https://www.neotalogic.com/wp-

content/uploads/2016/04/Artificial-Intelligence-in-Law-The-State-of-Play-2016.pdf. One of Lex

Machina’s products allows “attorneys to view granted motions with denied motions to see what’s

working and what’s not. [You can] [e]nter a judge’s name and motion type and instantly view

the judge’s recent orders on that motion type, as well as the briefing that led up to those orders.”

Id. The company is also able to predict Supreme Court case outcomes with great accuracy, and

it can “expose, for the first time ever, which lawyers win the most before which judge.” Id.

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It is not just lawyers whose jobs are threatened by A.I. For instance, Modria is a

company that uses artificial intelligence to resolve disputes without human input. E-commerce

companies use Modria to assess customer complaints, consider company policies, and deliver a

fast, fair resolution. But the software is also making its way into the legal profession. The state

of Ohio is using Modria to resolve disputes about tax assessments, and the company is also

working closely with the American Arbitration Association. Susskind Poster Child Modria

Gains Profile in the US for Online Dispute Resolution System, LEGALITINSIDER (July 15, 2015),

https://www.legaltechnology.com/latest-news/susskind-poster-child-modria-gains-profile-in-the-

us-for-online-dispute-resolution-system/; Blake Edwards, Is the Future of Civil Justice Online?

Modria Thinks So, BIG LAW BUSINESS (Oct. 8, 2015), https://bol.bna.com/is-the-future-of-civil-

justice-online-modria-thinks-so/. Artificially intelligent dispute-resolution stands to displace not

just lawyers, but also judges, arbitrators, and mediators.

Ready or not, A.I. is coming to the legal profession. “It’s like the beginning of the

beginning of the beginning,” says one legal A.I. chief executive. Dan Mangan, Lawyers Could

Be the Next Profession to be Replaced by Computers, CNBC (Feb. 17, 2017)

http://www.cnbc.com/2017/02/17/lawyers-could-be-replaced-by-artificial-intelligence.html. It

will be interesting to see how the rest of the story unfolds. Even in these early stages, A.I. can do

some parts of the job much faster and more accurately than any human, so it seems clear that at

least some lawyers will be displaced by machines. At a speech at Cambridge University,

Stephen Hawking closed his remarks by saying, “A.I. will be either the best, or the worst thing

ever to happen to humanity. We do not yet know which.” Perhaps the same is true for artificial

intelligence and the law.