Chapter 3 three technology in civil litigation civ lit 2nd

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Chapter 3 three technology in civil litigation civ lit 2nd

  1. 1. Civil Litigation:Process and Procedures Chapter Three Technology in Civil Litigation
  2. 2. Technology in Litigation  Document preparation  Maintaining client databases  Keeping client & office accounts  Electronic communications  Research  Document filingCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 2
  3. 3. Typical Law Office Uses  Word processing  Electronic spreadsheets  Time & billing programs  Accounting programs  Calendaring/docketing  Graphic presentation software  Trial presentation softwareCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 3
  4. 4. Law Office Uses, cont.  Internet search engines  Databases  Document scanning  Document searching  E-mail & electronic document delivery  On-line collaboration  On-line document repositoriesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 4
  5. 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 repositoriesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 5
  6. 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 6
  7. 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 7
  8. 8. Secure Remote AccessCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 8
  9. 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 hackersCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 9
  10. 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 10
  11. 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 virusCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 11
  12. 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” materialCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 12
  13. 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 purposeCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 13
  14. 14. In-House IT Staff  What services are required inside the office?  Buying, training, maintaining, repairing equipment  Long-range planning & emergency accommodations in trial preparationCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 14
  15. 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 filesCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 15
  16. 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 trialCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 16
  17. 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 firmCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 17
  18. 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 18
  19. 19. Outsourcing Tasks  Ordinary, recurring office functions  Payroll  Taxes  Client accounts  Billing  Service provider should have a system that is compatible with the firm’sCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 19
  20. 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 20
  21. 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 21
  22. 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 © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 22
  23. 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 jurisdictionCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 23
  24. 24. Extension of Privilege to AgentsCivil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 24
  25. 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!)Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458. All Rights Reserved.Goldman/Hughes 25

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