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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
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.3
Typical Law Office Uses Word processing Electronic spreadsheets Time & billing programs Accounting programs Calendaring/docketing Graphic presentation software Trial presentation software
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.4
Law Office Uses, cont. Internet search engines Databases Document scanning Document searching E-mail & electronic document
delivery On-line collaboration On-line document repositories
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.5
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
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.6
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”
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.7
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.
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.8
Secure Remote Access
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.9
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
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.10
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.
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.11
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
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.12
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
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.13
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
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.14
In-House IT Staff What services are required inside
the office? Buying, training, maintaining,
repairing equipment Long-range planning & emergency
accommodations in trial preparation
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.15
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
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.16
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
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.17
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
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.18
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.
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.19
Outsourcing Tasks Ordinary, recurring office functions
Payroll Taxes Client accounts Billing
Service provider should have a system that is compatible with the firm’s
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.20
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.
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.21
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.
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.22
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.
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.23
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
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.24
Extension of Privilege to Agents
Civil Litigation: Process and Procedures Goldman/Hughes
© 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.25
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!)