Chapter 3 three technology in civil litigation civ lit 2nd

Civil Litigation:Process and Procedures

Chapter ThreeTechnology in Civil Litigation

Civil Litigation: Process and Procedures Goldman/Hughes

© 2009 Pearson Education, Upper Saddle River, NJ 07458.

All Rights Reserved.2

Technology in Litigation Document preparation Maintaining client databases Keeping client & office accounts Electronic communications Research Document filing




Typical Law Office Uses Word processing Electronic spreadsheets Time & billing programs Accounting programs Calendaring/docketing Graphic presentation software Trial presentation software




Law Office Uses, cont. Internet search engines Databases Document scanning Document searching E-mail & electronic document

delivery On-line collaboration On-line document repositories




Document Storage In order to share information with

courts, clients, opposing counsel & other firm offices, it must be available through remote access Transmission via e-mail CDs & DVDs Servers On-line document repositories




Delivery On-line security concerns differ

from hard copy concerns Intentional hacking

Security at remote sites, such as public courthouses

Security between firm offices Secure communications of confidential

information to clients Accidental forwarding or “reply all”




On-line Storage and Collaboration Various members of a legal team

need to access material Between firm offices Between in-house and outside

counsel Between all members of the team

On-line collaboration software permits several people at remote locations to manipulate the same information.




Secure Remote Access




Computer and Network Security Workstations connected to a

network are potential sources of Tainted software Viruses introduced via the internet Intentional tampering

Network administrators can limit access Block unauthorized software

installation Protect the file server from hackers




Firewalls and Encryption Firewalls are designed to protect

individual computers or servers They protect the server by blocking

viruses Care must be taken to not block

remote transmissions from the offsite locations

Encryption programs use algorithms to scramble documents, rendering them unintelligible to anyone without the key.




Computer Viruses May be introduced in tainted software or

via the internet Can create minor inconveniences or

major headaches Destroy data Corrupt computer components

Can be deterred with virus protection, which must be updated frequently to protect against the newest virus




Federal Rules of Civil Procedure December, 2006 revision

Acknowledges the increased use of electronically stored documentation

Addresses the issue of document retention, without providing precise guidelines

Permits electronic searches for “smoking gun” documents

Documents must still be screened for “non-discoverable” material




Technology Support In-house IT staff may be

An attorney A paralegal A secretary An office friend A knowledgeable relative or child An IT expert hired for that purpose




In-House IT Staff What services are required inside

the office? Buying, training, maintaining,

repairing equipment Long-range planning & emergency

accommodations in trial preparation




In-House IT Staff, cont. What range of services are

required outside the office? Deposition videotaping Access to home files on the road Presentations in courtrooms

What are the obstacles? Support & training Necessary, compatible equipment Ability to handle heavy graphic/video/audio

files




Outside IT Consultants May be hired

Solely for maintenance or repair purposes.

To consult in choosing appropriate hard- & software for the desired applications

To perform “help desk” & training duties

To create presentations, databases, spreadsheets

To operate equipment in trial




Outside IT Issues Must be able to work within the

parameters of the firm’s equipment & budget

Must understand the importance of confidentiality

Must not present an obvious conflict of interest

Must agree upon ownership of presentations created for the firm




Courthouse Technologist May help

Determine what audio/visual or computer equipment is available in which courtrooms

Set-up at trial Determine compatibility with firm

systems Help by-pass or reduce extensive

security clearance checks for equipment brought to court.




Outsourcing Tasks Ordinary, recurring office functions

Payroll Taxes Client accounts Billing

Service provider should have a system that is compatible with the firm’s




Competency IT staff must be aware of ethical

constraints & evidentiary issues: Confidentiality of client information Privileged communications

Assigning law office staff, such as a paralegal, to guide IT staff & consultants can prevent an ethical violation from occurring.




Confidentiality and Privilege Confidentiality is a broad, ethical

concept: lawyers & their agents may not reveal any client confidences without the informed consent of the client.

Privilege is an evidentiary issue prohibiting lawyers & their agents from testifying against a client about matters in which a client has sought legal advice. The privilege belongs to the client, not the lawyer.




Work Product Narrower than attorney/client

privilege Protects materials prepared in

anticipation of litigation from Discovery

Found in Rule 26 (B)(3) of the Federal Rules of Civil Procedure, and Rule 16 (B)(2) of the Federal Rules of Criminal Procedure.




Exceptions Client waiver In extreme situations, to prevent a

crime of violence May include serious financial harm, if the

lawyer’s services are involved In order to correct a loss stemming from a

crime or fraud in which the lawyer’s services were used

When the client sues the lawyer Upon a final order from a tribunal of

competent jurisdiction




Extension of Privilege to Agents




Conflict of Interest Although paralegals, as members of the

legal team, must be considered in conflicts checking, outside IT consultants are not clearly covered. Consultants do not offer legal advice They are, however, privy to trial strategy &

confidential information. Should be certain the client’s interests are

not jeopardized, and perhaps even obtain informed consent in a case of direct conflict (or seek other assistance!)

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