Laptop Litigation: The impact of technology on litigation
Unless litigators insist upon and courts develop a systematic and
effective set of rules to deal with the realities of litigation in the
information age, developments in electronic litigation may warp our
justice system.
By Michael K. McChrystal, William C. Gleisner III
& Michael J. Kuborn
ike any powerful tool electronic litigation can
be used wisely or harmfully. We lawyers should be careful to assure that
litigating with electronic tools does not compromise our justice system.
Electronic litigation techniques can cloud and even distort the
litigation process. For example, electronic evidence may be published to
a jury while opposing counsel overlooks obvious objections or the court
fails to consider the unfair impact of that evidence upon a jury. The
authors believe crucial evidentiary and procedural issues currently go
unaddressed both before and at trial.
This is the first in a series of articles dealing with the impact of
technology on litigation. Future articles will discuss more discrete
issues related to the broad topic of litigation technology. Meanwhile,
this article surveys the various ways in which technology is being used
to prepare for and litigate a case, and includes an overview of various
hardware and software systems.
Technological changes are affecting the legal profession far more
than the changes that brought about notice pleading and the amendments
to the codes of state and federal civil procedure in the 1960s and
1970s. However, to date, no effort has been made to address in any
comprehensive manner the dramatic technological changes that are
occurring in the world of litigation, and this is cause for real
concern. Rules have been developed to respond to the videotaped
deposition, and there are a patchwork of new rules that address fax
transmissions, electronic filings, and the like. Nevertheless, there is
no comprehensive effort underway to assess the overall impact of
electronic litigation techniques on civil procedure and the rules of
evidence. The time has come for bar associations and court systems to
begin a serious and comprehensive assessment of electronic litigation
leading to the adoption of appropriate rule changes.
A Sea Change is at Hand
There are many reasons why electronic litigation will be a force with
which to reckon. For example, the standards by which competent advocacy
is measured in the information age already are evolving to reflect the
impact of information technology. Ethics opinions and court decisions
suggest the broad outlines of the new standards. As noted in a leading
publication on legal ethics:
"[A]dvances in technology are relevant to what constitutes [lawyer]
negligence and [a] defendant's failure to use available technology to
reduce a known risk could be considered negligence."1
There is a proliferation of superior online legal resources.2 It will not be long before the failure to research
the law online or check the Internet for relevant information could be
deemed professionally substandard conduct.3
A number of court systems already are experimenting with the electronic
filing of pleadings, documents, and briefs.4
Computers and the Internet will have an impact on issues as diverse as
jurisdiction,5lawyer confidentiality,6Fourth Amendment searches and seizures,7 and the ethical responsibilities of practicing
law.8 Undoubtedly email will become as
accepted as faxes or "snail mail" for routine confirming letters or
service of pleadings, briefs, and so on between opposing counsel.
Features of Electronic Litigation
Some aspects of electronic litigation already have received
substantial attention. For instance, it is becoming easy to find
guidance as to the framing of interrogatories so as to ensure that
proper requests have been made for electronically stored data.9 Moreover, courts themselves are rapidly
discovering the advantages of electronic document database and
transcript management, electronic filings, and electronic evidence.
Litigators who choose not to use technology in their practice may find
that both they and their clients pay an increasingly unacceptable price.
As one commentator recently remarked:
"That an adversary is unable to produce its own briefs in counterpart
electronic format [that is, on a CD-ROM] is no different a condition of
litigation than any other disparity in access to legal resources. After
all, not every law firm uses online legal research services, or has
state-of-the-art desktop publishing capabilities, or employs a stable of
bright and eager young associates. Litigation in an adversary system is
not a matter of maintaining the lowest common denominator between
adversaries, but rather it is a competitive striving to marshal winning
combinations of resources of all types and to package them in attractive
ways for the relevant tribunal."10
While some judges still resist electronic solutions, the trend is
unmistakable.
11 Increasingly, counsel can
check a court's Web page for court filings and scheduling information,
much as the courts have been doing for some time in multi-district
litigation (MDL), such as the MDL 926 breast implant litigation.
12 In fact, Web sites covering MDL actions have
become very sophisticated, complete with search engines, high-tech
graphics, and downloadable executables such as the Adobe Acrobat®
Reader.
13Other courts are beginning to
follow suit. Electronic court Web pages and filings may become routine
in the next few years due to their benefits.
14
As usual, Wisconsin courts are beginning to show the way. The
Wisconsin Supreme Court maintains a robust Web site, which is in fact a
Web site for the entire Wisconsin court system.15 It appears clear from the Report on the Circuit
Court Automation Program, accessible from that site, that it is just a
matter of time before Wisconsin courts begin experimenting with
electronic filings. This Web site makes it possible for users to
download several free software enhancements, such as Adobe's Acrobat
Reader.TM
One of the courts in Wisconsin is already a leading pioneer in
electronic litigation. The U.S. District Court for the Western
District's Web page is very instructive in this regard.16 At that court's site you can learn all about
"PACER," which permits public access to a variety of court documents.
According to that site, "If you have a personal computer, a modem and a
telephone line you can access Bankruptcy and District Court docket
sheets, party indexes, and judgment indexes. Just call the P.A.C.E.R.
service center at (800) 676-6856 for details."17 Moreover, in that court's courtrooms 250 and
260, counsel can:
- place a piece of evidence in a single location in the courtroom. An
image of that piece of evidence is displayed on monitors for counsel,
court, witness, and the jury to see. All people in the courtroom are
looking at the exhibit from the same perspective.
- selectively display the exhibit to any or all of the people listed
above.
- scan documents, store them on a personal computer (including
Macintosh), and call them up with a few keystrokes.
- ask witnesses to annotate an exhibit, retain the original without
annotations, keep a copy with the annotations, and do all this without
managing multiple photocopies or leaving the courtroom.
- play videotapes without renting VCRs and TVs. The participants can
watch the videotape over the same monitors on which they view exhibits.
- freeze a videotape frame and annotate the video.
- run computer animated accident reenactments right from your
computer;
- enhance the jury's understanding of a recorded conversation by using
a computer to link a transcript of the conversation with the audio
recording; and
- use presentation software to enhance your arguments.18
The advantages of briefs filed on CD-ROM (or, in the near future, on
DVD disks) also will make them very popular with many judges. Electronic
briefs can include full-text hyperlinked copies of cited authority or
links to copies of authorities on the World Wide Web, together with
hyperlinks to copies of evidence and even excerpts from videotape
depositions.19Such filings hold the
potential of significantly reducing a judge's workload by freeing the
judge from doing legal research or combing through the record. Such
briefs also enable the judge to write opinions with many citations to
and quotes from authorities that can be accessed directly from the
CD.
This is powerful evidence indeed of what litigation at the turn of
the millennium will entail in Wisconsin and elsewhere. However, do we
have the rules in place to accommodate both the new technology and the
demands of justice?
The Need for New Regulations
Legal standards have not yet come to terms with electronic
litigation. For example, pretrial scheduling and management orders often
fail to address the serious disruption that can follow from the misuse
of technology in the courtroom. These failures often are surprising
considering how often lawyers now come to trial equipped with a laptop
computer and a color projector.
High-tech litigation used to mean that a lawyer might come to court
equipped with monitors, overhead projectors, or Doar projectors.20Now litigators are relying upon far different and
often more sophisticated solutions for presenting their cases to a jury.
A favorite hardware combination includes Dell laptops, Infocus color
projectors, and barcode guns. Software such as Dataflight's
Concordance,® and its image viewer Opticon,® represent one
of the more advanced systems now available.21 Other equally fine litigation software solutions
include Bowne JFS Software
(formerly J. Feuerstein Litigator's Notebook),®22 Gravity,®23 Isys,®24Inmagic's DB/Text
Works,®25 and Discovery Pro for
Windows.®26 Another popular and
effective software solution for many litigators is Summation®27and one of its more popular image viewers TrialDirector.®28
Just as one example, using Summation,® a litigator can import
literally millions of pages of evidence and hundreds of transcripts into
an online database. The litigator can then search through the evidence
and the transcripts and comprehensively index, cross reference, and
retrieve all forms of evidence almost instantaneously. A litigator can
use a laptop with a barcode gun and a color projector to call up
evidence and display it virtually at will using Indata's TrialDirector.® The
relative cost of doing this is well within the reach of many
practitioners.
However, there are many evils that can result
from the use of this software and the related hardware that neither
courts nor the bar have begun to address in any meaningful way. Many of
these evils will be the subject of a future article, but it is important
to at least catalog some of the more serious dangers.
The use of this type of software and related hardware can seriously
disadvantage an opponent who is not equally well equipped. Of greater
concern, electronic litigation support software, and other powerful
commercial software and related image manipulation software, can be used
to distort or manipulate evidence in ways that have been unthinkable in
the past. For example, someone could use a digital camera to capture an
accident scene or some other important event. When this digital image is
imported into the computer, there is no negative or other way to trace
how this photograph was created. Using powerful software such as Adobe's
Photoshop 5.0, subtle but material changes could be made to the
photograph and a witness then could testify that the photograph indeed
represents what he or she saw at a particular time or place. How does
one cope with such dishonesty, or determine that such a deception has
even occurred?
Software such as TrialDirector® also can be used to pretreat
evidence or actually manipulate evidence while it is being presented in
court. For instance, an attorney calls up a piece of evidence via a
color projector and then has a witness mark or manipulate the evidence
in some fashion, by using a light pen, for example. In fact, a new
version of an exhibit may thus have been created. However, as soon as
the lawyer kills the electronic presentation, that new evidence
disappears. Rules need to be crafted that will enable an adversary and a
court to capture such evidence and ensure its inclusion in the
record.
Michael McChrystal, top, Marquette 1975, is a professor of law at the
Marquette University Law School.
William Gleisner, middle, Marquette 1974, both a practicing attorney
and computer consultant, maintains a law firm-based litigation support
service bureau in Milwaukee.
Michael Kuborn, bottom, Marquette 1998, is with Olsen, Kloet,
Gundersen & Conway, and is trained in computer recovery and computer
search and seizure techniques. Products and services mentioned in this
article should not be construed as an endorsement.
|
Several other changes to existing rules of court also should be
considered. To avoid surprise, counsel should be required to produce
more than just copies of evidence they plan to present at trial. They
should be required to provide technical information about how the
exhibits will be presented. Then an opportunity should be provided to
both opposing counsel and the court to view the images and other
electronic evidence in advance of trial to determine if there is
anything objectionable about the technical aspects of a presentation
before it is published to a jury.
Courts should consider adopting special rules that address online
evidence, such as mandating the means and methods of ensuring that the
court and all counsel can verify that online evidence corresponds to
original sources. Indeed, the entire matter of evidentiary
authentication needs to be rethought. What about evidence that never was
intended to have a hardcopy counterpart? Is it time to consider a
standard that cannot be defeated, comparable to an electronic signature,
so that certain forms of sensitive electronic data (for example, online
contracts, confirming email, digitally created photographs) can be
authoritatively authenticated when they are offered into evidence? At
present, we are just beginning to see the first stirrings of interest in
such matters in Wisconsin.29
We can be certain that the information age will bring many new
often radically new innovations, but we cannot possibly predict
what those innovations will be. However, litigation must always involve
a search for the truth. The rules of evidence, since the days of Wigmore
and before, have always concerned themselves with ensuring that the
trier of fact will have the benefit of the best and most authentic
evidence, and the rules of civil procedure have always had as their goal
the orderly providing of that evidence to the trier of fact in as fair a
manner as possible. Serious thought needs to be given to the creation of
rules that will be flexible enough to encompass whatever new
developments are thrust upon us in the exploding information age. A
comprehensive study of our rules of civil procedure and evidence needs
to be done with the care that has attended such well-thought-out
undertakings as the Uniform Commercial Code or the Restatements of
law.
Conclusion
The rules of the game may be changing, but it's still litigation, and
the search for truth remains the goal. Nevertheless, there is a real
danger that the litigation process will become a victim of technical
innovation. The rules that control this new world must be designed to
remove the magic and ensure that litigation continues to focus on
justice and not just electronic pyrotechnics.
Later articles in this series will focus on specific methods of
coping with the challenges that are presented when attorneys employ
electronic litigation techniques. The next article will discuss what
objections and challenges can be made when opposing counsel introduces
electronic evidence, and what changes in court rules should be adopted
in order to respond to the challenges of electronic litigation.
Endnotes
1ABA/BNA Lawyers' Manual of
Professional Conduct, Current Reports, 11 LMPC 3, d10 at p. 5 of Westlaw
online version (1996).
2 See, for example,http://www.cyberlaw.com; http://legalonline.com, and
our own State Bar's http://www.wisbar.org, to name only a few of the
superior and inexpensive legal resources now on the Internet.
3See, e.g., Massey v. Prince
George's County, 918 F. Supp. 905 (D. Md. 1996), wherein the court
observed:
"The Court turns to Respondents' further answer to its Show Cause
Order, namely that the Assistant County Attorney who filed the Motion
for Summary Judgment in this case did not know about the Kopf
case. That, of course, may well be true, but the question is, ought he
to have known? . [C]ounsel had an obligation to provide 'competent
representation,' which includes an ability to research the law. Case
reports are available in hard cover and online from computers. The
Natural Language search method on Westlaw [in the appropriate database]
reveals that the two most frequently referenced cases are (1) Kopf
v. Skyrm, 9933 F.2d 374 (4th Cir. 1993), which is the appeal after
remand of Kopf v. Wing, 942 F.2d 265 (4th Cir. 1991), and (2)
Kopf v. Wing itself." Id., at 908.
Consider also the probable use as a standard of the following excerpt
from The Competitive Impact Statement of the U.S. Department of Justice,
appended to the Consent Decree in U.S. v. Thomson Corp., at
*23, 1997 WL 226233 (D. D.C. 1997):
"Print versions of the law are not adequate substitutes for
comprehensive online legal research services. Legal researchers who have
the necessary computer hardware and the necessary skills to use this
product value the timeliness and speed of comprehensive online legal
research services. Material provided on a comprehensive online legal
research service is updated often and is thus more timely than material
offered in printed form. Full-text word searching of primary law on
CD-ROMs is not an adequate substitute for comprehensive online legal
research services. The content of most CD-ROMs is limited to a
particular jurisdiction or topic. Moreover, the material contained on
CD-ROMs is not as current as the material offered on an online legal
research service. If the materials on CD-ROMs are not current, lawyers
must still use online legal research services to supplement their
research. Furthermore, the topical or limited jurisdictional focus of
CD-ROMs limits their primary appeal to smaller law firms or firms
specializing in a particular area of the law. These firms are not heavy
users of comprehensive online legal research services. While the
Internet is a useful tool for some researchers, it is not a substitute
for Lexis-Nexis and Westlaw for several reasons. First, the material
contained on the Internet is not nearly as comprehensive as the material
offered on Lexis and Westlaw. The Internet does not provide access to
historical opinions, every court's opinions, every jurisdiction's
statutes, or the number of secondary law products that Lexis-Nexis and
Westlaw offer. Second, the Internet's search mechanism is not as
sophisticated or effective as Lexis-Nexis' or Westlaw's. Third, the case
law offered on the Internet does not provide citations that are accepted
by courts or are relied on by attorneys." Id. at *23.
4Wells & Winger, Now in
Development: The Courthouse on the Web, 12 Legal Tech Newsl. 1
(March 1998) ("Under prototype programs in a handful of federal courts,
Web sites are now beginning to assume some of the key functions of the
courthouse. Parties can file and serve motions and other papers
electronically, and judges, clerks, lawyers and their staffs can view
them via the Internet."); see also Kruger, Electronic
Filing of Claims and other Pleadings in the Southern District of New
York, 767 PLI/Comm 291 (April 1998).
5R. Timothy Muth, Old Doctrines
on a New Frontier: Defamation and Jurisdiction in Cyperspace, 68
Wis. Law. 10 (Sept. 1995).
6McChrystal, Gleisner, and Kuborn,
Document Destruction
and Confidentiality, 71 Wis. Law. 24 (Aug. 1998) ("Lawyers
and clients should know that data they've entrusted to a computer system
may have a much longer life and be harder to erase than merely executing
a 'delete' command".)
7McChrystal, Gleisner, and Kuborn,
Law Enforcement in
Cyberspace: Search and Seizure Law Applied to Computer
Data, 71 Wis. Law. 35 (Dec. 1998).
8See ABA Formal Ethics
Opinion 95-398 ("A lawyer who gives a computer maintenance company
access to information in client files must make reasonable efforts to
ensure that the company has in place, or will establish, reasonable
procedures to protect the confidentiality of client information. Should
a significant breach of confidentiality occur, the lawyer may be
obligated to disclose it to the client.")
9Berman, Practical Issues in
Framing and Responding to Discovery Requests for Electronic
Information, ABA Center for Continuing Legal Education National
Institute (Oct. 22-23, 1998). See also Grenig, Electronic
Discovery: Making Your Opponent's Computer a Vital Part of Your Legal
Team, 21 Am. J. Trial Advoc. 293 (1997); Shear, Electronic
Evidence: It's Not "Cutting Edge" Anymore, 21 Lawyer's PC 1 (1994);
Lehman, Litigating in Cyberspace: Discovery of Electronic
Information, 8 S.C. Law. (1997); Olmsted, Electronic Media:
Management and Litigation Issues When "Delete" Doesn't Mean Delete,
63 Def. Couns. J. 523 (1996).
10Ginhart, Paperless Federal
Litigation, 45 Fed. Law. 42, 44 (May 1998).
11Hansen, Courts Saving Time
and Trees, 85 A.B.A. J. 20 (March 1999).
12See the court's Web page at http://www.fjc.gov/.
13A good example is the court's
Web page in the MDL 926 Breast Implant Litigation. See, http://www.fjc.gov/BREIMLIT/mdl926.htm
14Yoshinaga, Is Electronic
Court Filing in Your Future?, 10 Utah B. J. 15 (1997).
15See http://www.courts.state.wi.us/WCS.
16Seehttp://www.wiw.uscourts.gov.
17Id.
18Id., at http://www.wiw.uscourts.gov/pub_district/electronic_courtroom/default.htm.
19Solano, Electronic Briefs:
Soon to be Commonplace, 19 Penn. Law. 18 (1997).
20Doar Litigation Services has
developed some innovative and advanced technical services since the days
of the simple Doar Projector. See http://www.doar.com.
21See Concordance's home page at
http://www.dataflight.com.
22http://www.jfsnet.com.
23http://www.gravitynet.com.
24http://www.isysdev.com.
25http://www.inmagic.com.
26Id.
27http://summation.com.
28http://indatacorp.com.
29See, e.g., Muth &
Bell, Wisconsin's
Voyage to Computerized Courts, 71 Wis. Law. 14 (Feb. 1998);
Jensen, Laws in the
Making: AB811 Regulates the Use of Digital Signatures in
Wisconsin, 71 Wis. Law. 23 (April 1998); cf.,
Johnson, Computer Printouts as Evidence: Stricter Foundation or
Presumption of Reliability? 75 Marq. 439 (1992).
Wisconsin
Lawyer