The Legal Profession – Still Catching Up with the New Reality

eDiscovery rules, the law of spoliation, and evidence law now address electronically stored information (ESI).  Courts and some commentators are now talking about the effect of the Internet, social networking, and cloud computing on eDiscovery and evidence law.  Thus, the law is starting to catch up with the new reality of computers and the Internet. But is the legal profession catching up with this new reality?

Some lawyers are out front, educating the bar and the public about this new reality.  For instance, the E-Discovery and Digital Evidence Committee of the American Bar Association Section of Science & Technology Law has raised awareness of the new reality for years.  Fortunately, lawyers have a wealth of content available, whether in the form of continuing legal education programs, books, or articles, to learn about eDiscovery and computer forensics.  The question remains, however, whether most members of the bar are availing themselves of these resources and applying the eDiscovery lessons taught to their day-to-day practices. 

Many lawyers are still in the process of catching up with the new reality.  Some litigators know that the eDiscovery rules require them to come to grips with requesting and disclosing ESI, but they haven’t yet changed the form documents they have used comfortably for years.  Others don’t know how to respond to a request for ESI.  Others don’t think about it at all.  It will take time, and perhaps a generational change, to bring the majority of the bar fully up-to-date. 

In the meantime, I would like to send one message to the leadership of the bar.  In particular, I hope to reach authors of well-respected books covering areas of practice that haven’t been perceived as being “high tech.”  I would say to these authors that they need to set the example and examine every topic covered in their book for possible changes in light of the new Internet reality. 

Here is one example.  Last month, I talked about changes to the administration of wills and trusts is changing because of financial software, such as Quicken, receiving financial statements electronically, and the use of mobile computing in our financial lives.  I did a brief thought experiment and consulted the most well-respected treatises covering wills and trusts in California. 

Only one of these books mentions anything about electronic statements or inspecting the computers of clients who have passed away.  And the one book that mentions anything about the topic advises lawyers themselves to inspect their clients’ computers.  The advice, however, fails to mention evidence preservation or spoliation.  It said nothing about the assistance lawyers can receive from computer forensic experts to collect evidence in a forensically sound manner that preserves chain of custody.  Consequently, that advice may lull a lawyer into the careless alteration, corruption, or destruction of ESI relevant to an estate dispute. 

Here is another example.  I have been aware of a survey by the American Academy of Matrimonial Lawyers, which found that 81% of responding AAML members have seen an increase in the use of social network evidence in the preceding five years.  Facebook was the primary source of such evidence. 

Today, I checked the top family law treatise in California to see if it discusses the topic of social network evidence.  I discovered that it contains nothing about Internet evidence.  The treatise does have a general discussion about eDiscovery and a cross-reference to a civil procedure treatise.  But it says nothing about the huge impact of social network evidence on family law.  I also did a search for the word “Facebook” within the treatise.  The search produced no results.   I guess the authors haven’t seen the AAML survey. 

In sum, the legal profession has some catching up to do.  The new reality is changing the law rapidly, and the legal profession must keep up.  I hope the leaders of the bar set the example and reexamine their areas of practice to teach the rest of the bar how computers, mobile computing, cloud computing, and the Internet are changing their fields of law. 

Stephen Wu

Partner, Cooke Kobrick & Wu LLP

www.ckwlaw.com

swu@ckwlaw.com

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