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Laptop Litigation:
The impact of technology on litigation

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.

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

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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.

¹⁶See http://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).