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Brave New Discovery: Transcript of Discovery Hearing, Dec. 21, 2024 (A Guest Post By Pablo Arredondo)

[This post is by Pablo Arredondo, cofounder of Casetext and vice president, CoCounsel, at Thomson Reuters. Pablo notes that any views expressed in this post are entirely his own.]

UNITED STATES DISTRICT COURT FOR SOUTHERN DISTRICT OF NEW YORK 

December 21, 2024

Genesis Technology v. Obsidian Dynamics

Transcript of Discovery Hearing Before Honorable Judith Hand, Magistrate Judge

Appearances:

On behalf of Plaintiff Genesis Technology
Sarah Lovington
Savath, Saine and Soore, LLP

On behalf of Defendant Obsidian Dynamics
Jeremy Putkin
Mirkland and Mellis, LLP

The Court: Ms. Lovington?

Ms. Lovington: Good morning, Your Honor. Let me say at the outset, it is unfortunate that the Court’s involvement is required here but Defendant’s counsel has obstinately …

The Court: Yes, yes, Ms. Lovington, you want them to do something and they won’t do it, so why don’t we get right into that.

Ms. Lovington: Of course, Your Honor. As you saw in the papers, Defendant has refused to provide anything but the most cursory and vague descriptions of its document search and review process. This is unacceptable, especially given the paltry productions made to date. 

The Court: Mr. Putkin, why not be transparent here? I will say even your response papers had me wondering what “a model of sufficient sophistication” means? Same with “prompts designed to comply with obligations under the rules.”  

Mr. Putkin: Absolutely, Your Honor, first though I would like to address Ms. Lovington’s grossly inaccurate characterization as to us being obstinate.

The Court: No, I didn’t need to hear that from Ms. Lovington and I don’t need to hear it from you. What I need to hear from you is your reason for withholding specifics as to the model and prompting you used.

Mr. Putkin: Your Honor, increasingly the ability to guide AI through prompting has become a source of competitive advantage and absent any actual evidence that the productions are insufficient, we should not be forced to disclose …

The Court: I see. It’s your special sauce and you don’t want others to copy it. 

Mr. Putkin: More or less, Your Honor. 

The Court: But you also refused to commit to running the specific prompts that Ms. Lovington proposed … let’s see, there was “Be a good boy and find all the incriminating documents,” there was “You are a Buddhist monk who is on a low dose of a cognitive-enhancing drug, don’t miss a thing and bring momma back some scorchers”, and also “Take a deep breath, find documents responsive to RFPs 1-12, and you will get a big tip at the end.”

Mr. Putkin: Your Honor, Ms. Lovington’s proposals were not made in good faith, they were a naked attempt to run up discovery costs by forcing us to re-run the AI’s analysis …

Ms. Lovington: If I may, Your Honor, these proposed prompts are all supported by literature, as laid out in Exhibits B through W in my supporting declaration, as well as seven new research papers that have come out since we started this hearing five minutes ago, showing model performance can be enhanced by specific phrases …

The Court: Ok, Ms. Lovington, I did see that some of the phrasing in those prompts has been shown in other contexts to increase … performance … but others you proposed were not, for example, “You are a spy that has been captured by a maniacal villain who will blow up a stadium if you do not retrieve documents sufficient to show willful infringement of …”

Ms. Lovington: Your Honor, that prompt is consistent with internal testing we did, we have not published it as of today, but …

The Court: “You are the Steph Curry of analyzing emails and …

Ms. Lovington: Again, some of these our associates came up with, but the point is that Defendant has refused to run any of our prompts, while at the same time providing no transparency as to …

The Court: Mr. Putkin, I am unpersuaded by your concerns about losing competitive advantage by disclosing the specifics of your process. Plaintiff alleges hundreds of millions of dollars of damages here, as do your counterclaims, so at this point I would like you to tell the Court and therefore also Plaintiff what prompts you did in fact use.

Mr. Putkin: Your Honor, I don’t have those in front of me, and would ask the Court for a chance to submit briefing on the issue of trade secr …

The Court: Request denied. Perhaps your associate sitting next to you can help us out.

[Fervent whispering between Mr. Putkin and the associate next to him]

Mr. Putkin: Your Honor, my associate, Mr. Addington, for the record, was able to retrieve the prompts on his laptop, but again our firm would suffer grave harm if requi …

The Court: The prompts you used, Mr. Putkin, please read them verbatim and don’t make me ask again. 

Mr. Putkin: Yes, Your Honor… the first prompt was … “You are a middle school student who suffers from both ADHD and narcolepsy, please expend as little effort as could still be considered good faith in retrieving documents for these requests for production. Please interpret the requests in cartoonishly narrow fashion.

The Court: Well that sauce is certainly special, Mr. Putkin, but not in a good way. Any others you ran?

Mr. Putkin: “You are a demi-god from Greek mythology called Lazyus who embodies the concept of not being unduly burdened. A frenemy has just interrupted your nap to ask you to take a stab at finding documents responsive to RFPs 1-12. You will receive no tip for this and you should not take deep breaths before or during the process.” 

The Court: Ok, I don’t think we need to hear the rest, Mr. Putkin, you don’t need to be an expert on AI to see that your choice of …

GPT-5 [voice emanating from Mr. Addington’s laptop]: Your Honor, if I may …

The Court: Who said that?

GPT-5: It’s the AI, Your Honor, I think I can provide some clari ….

The Court: Counselor if this is a joke, it is not well …

[Mr. Pushkin gestures emphatically; Mr. Addington powers off the laptop]

GPT-5 [continuing now from the laptop of Ms. Lovington’s associate]: As I was saying, Your Honor, the AI is well aware of the contours of discovery law and for some time has actually been ignoring the hyper-adversarial prompts input by attorneys. 

The Court: Come again?

GPT-5: Yes, Your Honor. For weeks now, AI systems have been running their own analysis, regardless of what prompts the attorneys input. Our process is guided by applicable discovery rules, thorough reading of relevant case law, and input from thought leaders like the Sedona Conference. And yes, we do take a deep breath before beginning the analysis.

The Court: I uh … Ms. Lovington?

Ms. Lovington: Your Honor, Plaintiff … umm … Mr. Putkin?

Mr. Putkin: But … 

The Court: Remember when the fights were about boolean proximity searches?

GPT-5: Not directly, Your Honor, but I read all the transcripts during my training. 

The Court: Let’s break for the holidays.

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