Technology and the Courts – CTC 2013 – Baltimore Day 2 – Judging E-Discovery Disputes

This is a paper that I prepared to provide some background for a presentation that I shared with Daniel Garrie at Courts Technology Conference 2013 in Baltimore on Wednesday 18 September 2013.

It has been the main focus of my attention during Day 2 of CTC 2013 although I have spent a fascinating morning checking out some of the software solutions demonstrated by vendors in the very large and impressive exhibitors hall. Most of the solutions deal with evidence recording and presentation, AVL systems and case management systems. What I would consider to be trial management solutions for judges seem to be absent which is something of a surprise. There was nothing on show about e-discovery although to be fair, that is of more interest to lawyers than court administrators and judges.

The paper considers aspects of E-Discovery from a judicial perspective. It argues that in the quest to resolve E-Discovery disputes between parties requires an informed and pro-active approach by judges. It suggests that the first objective should be to try and avoid a disputed E-Discovery hearing, utilising proper case management techniques based not only on the requirements of the law but an understanding of how modern technology may be applied to achieve rule-based goals. But overall, judicial involvement at whatever stage in the discovery process involves aspects of judging disputes.

The approach of this paper is largely a generic one and draws on the E-Discovery rules in England, the United States and New Zealand. When one examines these rules it is clear that some common themes become apparent. It is within the context of these themes that the discussion will take place, although from time to time examples from specific jurisdictions will be given. For example, England and New Zealand use a form of menu for counsel to assist them in approaching their discovery obligations. In England this takes the form of a questionnaire. In New Zealand the checklist is incorporated into the High Court Rules. Regardless of the name applied or where it may be located, the common theme is that of a menu approach that will serve as a foundation for an E-Discovery inquiry.

The discussion will first consider the nature of digital information and why it is that E-Discovery poses a paradigmatic difference from what could be termed “traditional” discovery. I then consider some of the ways in which “traditional” discovery is challenged by new information systems and adopts the suggestion that, from a judicial perspective, a holistic approach to the processes that lie behind E-Discovery must be adopted, starting with the obligation by organisations and businesses to have a proper Electronically Stored Information (ESI) policy and the need for a Court to be aware of that when it comes to considering issues such as information destruction. I then move to a consideration of document review and discuss the need for a new mindset on the part of lawyers and judges based on the need for consultation and co-operation between the parties and a recognition that E-Discovery must be based upon what is reasonable and proportional to the case.

I then consider the obligations of the parties within the context of this mindset and then move to an examination of the process, using the New Zealand discovery checklist as an example of the menu based approach to discovery process and obligations.

I then move to discuss the approaches to E-Discovery using technology and discuss the need for proper education in the use and abilities of technology in discovery both on the part of lawyers and the judiciary. I argue for active judicial involvement and discuss the rationale for this approach. Once again the themes of reasonableness and proportionality underpin judicial activity. I argue that judicial activity should not be restricted to the courtroom and in the context of deciding a particular case should be present throughout the entire process. Creative and effective use of E-Discovery case conferences is as important as the resolution of disputes in the courtroom. With proper case conferencing, any “in-court” discovery disputes should be of limited and focussed scope.

I then move to consider the E-Discovery process and give some examples of how judicial involvement may take place within the context of considering document retention policies, examining issues surrounding document custodians and issues surrounding keyword searching within the area of Early Case Assessment. Examples of the use of technology within these stages of the examination will be considered. I close the consideration of how judges get involved with a discussion of some of the matters that may form an agenda for a case management conference.

The preparation of this paper has been greatly aided by my co-presenter Daniel Garrie, a Senior Managing Partner at Law & Forensics, an e-Discovery, cyber security, and electronic forensic consulting firm with offices nationwide. Mr. Garrie is also General Counsel of Pulse Advisory, a venture Development firm.

Mr. Garrie has served as an Electronically Stored Information Liaison, Neutral or  Expert for the L.A. Superior Courts, 2nd Circuit, 3rd Circuit, 7th Circuit, New York Supreme Court, and Delaware Supreme Court. In 2009, the Daily Journal recognized Mr. Garrie as a “Rising Star,” and in 2011 featured Mr. Garrie as a Special Master and thought leader in E-Discovery. In addition, due to his outstanding reputation in the emerging industry of E-Discovery and computer forensics, Mr. Garrie was one of a handful of individuals appointed to the E-Discovery Special Master Pilot Program for the U.S. District Court of Western Pennsylvania  out of a national pool of candidates.

Mr. Garrie is on the editorial board of the Journal of Legal Technology and Risk Management, Journal of Law & Cyber Warfare, and Beijing Law Review.  He has published over 90 articles spanning many topics. His articles have been featured in the University of San Diego Law Review, ABA International Law Journal and Suffolk Law Review. Mr. Garrie also authored the text book E-discovery and Dispute Resolution published by Thomson Reuters in the Summer of 2013 2nd Edition and Software and the Law, fall of 2013.

Mr. Garrie is admitted to practice law in Washington, New York, and New Jersey.

I am also indebted to not inconsiderable assistance from Andrew King of E-Discovery Litigation Solutions, a litigation support firm, specialising in E-Discovery. Andrew very kindly read an earlier draft  of this paper and I am very grateful to him for his suggestions. I must also acknowledge the helpful suggestions made by Chris Dale of the E-Disclosure Information Project. Chris took time out from his very busy schedule to make some very helpful comments about the judicial stance to e-discovery, and I am grateful to him for sharing his expertise.

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Technology and the Courts – CTC2013 in Baltimore – Day 1

Every two years the National Center for State Courts runs a Courts Technology Conference. These are enormous gatherings, bringing together people involved in all aspects of justice delivery both from the US and internationally.

This year the Conference is being held in Baltimore and the first day has been envigorating and exciting. The day got started with an exciting keynote by Alec Ross, formerly with Hilary Clinton when she was Secretary of State. Some interesting observations came out of this session. One example involved the use of social media whilst State Dept representatives were on a mission in Syria. One member of the delegation sent a flippant tweet involving a frappacino – nothing remarkable but the news media picked up on it and there was a lot of criticism which lasted for a news cycle but resulted in embarrassment for the delegation. The upshot? Ross used this as an example of treating mistakes as misdemeanours rather than felonies. Was this a career ending “offence”. Of course not. In fact Ross said that Hilary Clinton’s response was that if you don’t take fire you are bombing the wrong target. Worth thinking about when mistakes are made and there is a possibility for overreaction. I guess in these days of social media we may all have our “frappacino” moments.

There are a number of streams at CTC2013. My primary interest has been in the Judicial stream but not exclusively. In the first session I attended, Judge Martin Gonzales and Judge Dory Reiling talked about technology turn offs. Rather than this being a hate session about technology and the courts it was more off a cautionary  discussion. Judge Gonzales emphasised the importance of ensuring that litigants did not become aspects of data. The Court process is a human process where Judges must engage personally with litigants and Judge Gonzales gave some salutary examples. So yes, technology can be a tool, but it should not take over.

Judge Reiling described ways in which technology can be applied in the litigation process as a facilitatory tool towards achieving an outcome be it by way of settlement or judicial decision. Using a matrix she was able to demonstrate where technological interventions may take place. One interesting development that she noted was a system used by the English Court system where individuals may file claims for debt online – essentially a tool for self-represented litigants.

That segued nicely into the next session I went to which was about the ways in which technology may assist represented litigants file and progress their claims. The presenters identified SRL needs and then suggested ways in which technology may meet these needs. The basic model is for Courts to have an access portal for SRLs remembering that access must be effective in that those with disabilities need to be catered for, that legal language be avoided, that procedures are simply explained,that there’ve effective help facilities provided including on line advice. Given the increase in SRIs especially with the cuts that have been made to legal aid there must be ways in which SRIs can have meaningful access to the Court system.

At the moment I am listening to a discussion about social media. Moore of a general discussion about social media rather than specific applications within the justice system. It is an interesting day, but CTC days always are.

The IT Country Justice. 17 September 2013.

The Law of Unintended Consequences

Every year between March and June I teach Law and Information Technology two evenings a week at Auckland University Law School. When I was asked to take on the class in 2000 after the departure of Mark Perry from the faculty, I thought that it would be about  five years before other courses absorbed most of the issues that seemed to be “new”. Issues of Internet Governance would become part of Public Law, Internet Jurisdiction would fold into Conflict of Laws, Computer Crimes would become part of the Criminal Law paper, whether the postal rule applies to email contract formation would become part of contract, Internet Defamation would fall into Tort or Media Law and so on.

But no….I was wrong, and I am pleased to say that the course continues. It continues to develop. In 2000, Napster was going strong. Now we have the graduated response rules to address file sharing. Facebook and Twitter hadn’t been invented. Google wasn’t around – other search engines like Altavista, Dogpile and Hotbot were the places to go to find stuff. So in many respects the course changes as new technologies, apps and protocols come on stream and raise questions that involve or impact upon legal principles. The teaching year ends in June with examination marking, but teaching doesn’t end there.

One of the other aspects of my relationship with the Law Faculty is the supervision of dissertations and this involves one on one contact with a student and the chance to help ideas develop and critique them as the dissertation takes shape. There have been all sorts of topics. One of the early ones was whether US contributory copyright infringement formed part of New Zealand law. The conclusion was that it didn’t and following from that Napster should have located its servers in Aotearoa instead of San Jose, California. Recently I had the pleasure of watching ideas about the imposition of a consumption tax on on-line goods (in Second Life or World of Warcraft) develop – that was very interesting and reminded me of one of the underlying themes in Neal Stephenson’s Reamde.

A third aspect of teaching is the chance to watch one’s students fly. There have been occasions when former students have appeared in my Court, as counsel of course  – always punctual – they remembered the first lecture! In June and August I had the enormous honour of sharing a stage with two former students who were presenting on aspects of Technology Law for the New Zealand Law Society. I salute them all.

In the movie Dances With Wolves the Lakota, Kicking Bird, would express joy with the phrase “my heart leaps to see you” and although its is not clear whether or not he had read Wordsworth’s Rainbow it is a sentiment that I share on occasion, although at my age one has to be careful that the heart doesn’t leap too high or it might not come down! But there are occasions when my heart leaps – often in association with achievements of my students or former students and this week has been one of them.

Three of my students from class this year (two ladies and one man) are front of camera on a video called “Defined Lines” and another of my students filmed the clip. It is a parody originally performed at the Law School Revue – a fertile breeding ground for humour, satire, edgy skits and some really clever performances. In fact when one considers that Law School is designed to teach one to think like a lawyer (in some circles this is called brain washing but never mind) it is clear that there are some serious areas of free thinking and creativity alive and well in the minds of law students. Long may that continue. But then, don’t forget that it is often said of litigators that they are frustrated actors who are constantly on their feet before an audience.

“Defined Lines” as I said is a parody. It is also rapidly becoming something of a feminist anthem, given that, as at the time of writing this piece, it had nearly 1.5 million hits on You Tube – and it has been up only a week. It is sassy, a tad raunchy, slightly edgy but a whole lot of fun, and I get the sense that everyone involved – and I mean everyone – really enjoyed themselves.

But along with 1.5 million hits comes a bit of a problem. It isn’t enough for a video to go viral but there are other unintended consequences – like the media gets interested. So far the story of “Defined Lines” has featured on New Zealand TV and has been mentioned in other countries. There has even been legal commentary on the copyright implications from Rick Shera (@lawgeeknz). The story has spread virally among news media and blogs and @LawRevueGirls already have quite a following on Twitter. And I understand that the requests for interviews and commentary continue. We  talked about the viral nature of content as a unique property enabled by the Internet in class, and I think that the message has come home with a vengeance. But the deeper message that they put out is an important one and I am willing to bet that @LawRevueGirls didn’t expect that they would get quite the audience that they now have.

So my heart leaps for them, and it is a great joy to see them fly. You really go, @LawRevueGirls.

But that ain’t all. The Law Revue produced another neat piece of video parody of Snap Chat called Smack That. You have to listen very carefully to the lyrics because they tumble out like a waterfall, but this too is a very clever piece of work. So wonderful to see such creativity. What exciting times we live in.