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Home / Expert Opinion / Social Media Law: LegalTech 2014: New tech and a prediction

Social Media Law: LegalTech 2014: New tech and a prediction

Scott Malouf

Scott Malouf

LegalTech is a trade show for attorneys, law firms and law departments. Aptly named, the event showcases new or improved technology for use in legal practice. Herein, I’ll discuss some of the technologies presented and offer a humble prediction about how social media discovery will affect education at future conferences. 

Technophiles and attorneys love “the next big thing.” Whether the coolest new cellphone, a high-profile case or a great new client walking in the door, we like to look forward.  There was no consensus on the next big thing at this year’s LegalTech. Instead, I’ll highlight a number of “small” technologies or services that will improve your practice.

Conexiones Judiciales will likely only appeal to businesses with litigation in Mexico and South America, but it struck me as innovative, well-positioned for increased trade flows, and proof the world is getting smaller. The firm digitizes the Mexican or South American court records, which are mostly still on paper, of your pending cases to facilitate case monitoring. It offers a portal to view your documents and share those records with stakeholders.

Deposition exhibit service eDepoze and trial preparation/presentation software TD Notebook and TrialDirector provide large firm technology to even the smallest firms. Printing, prepping and hauling paper exhibits to a deposition is a hassle. EDepoze puts exhibits on iPads. The lawyer taking the deposition can reveal the exhibits in his/her preferred order and exhibits can be marked, by writing on the iPad, during the deposition. Post-deposition, local copies of exhibits are available for all parties and stored in the cloud. The service is not offered to law firms, but resold by court reporters. As of this writing, only two New York reporters offered eDepoze, but you may want to ask your court reporter if they are interested.

You can move those deposition exhibits into Trial Notebook for trial preparation and then into Trial Director for the big game. Trial Notebook and Trial Director are integrated trial preparation and presentation software. Attorneys upload case materials (depositions, documents, exhibits and video) into Trial Notebook. You, and your team, can then review and mark materials and set strategy from anywhere.

If an attorney is trying a case out-of-town, support staff back at the office can use Trial Notebook to prepare for later stages of the trial. The software also has project management tools such as assigning tasks, sharing contact information, calendars, checklists, etc. You can also grant limited access, such as for witnesses or experts, to review designated materials. Materials selected for use at trial can be imported directly into Trial Director for trial or ADR presentations.

Perhaps the most immediately useful service uses an old technology — landline phones. AppearByPhone allows attorneys and clients to remotely appear in court. An attorney calls the service with appearance details and AppearByPhone handles the logistics, including monitoring whether the court is running late, calling all parties when the court is ready for the appearance, and providing a recording, if authorized. The service can handle calls with a large number of participants, such as a class action or bankruptcy proceeding.

AppearByPhone is free to courts while each attorney or client on a call pays a fee. Not only is the service free to courts, but a representative said the company will donate phone equipment to a court that needs the hardware for a call. Whether you must take the Thruway from Canajoharie to Canandaigua or the #4 Train from Grand Central Station to the Grand Concourse in the Bronx, this service can save you time by cutting travel. The service is also rolling out video capabilities.

As with any technology or service, the benefits are not guaranteed and the upfront costs are not necessarily small. User training time and glitches can also reduce your mileage. If you are interested in any of these services, kick the tires a bit — ask to speak with other users or, even better, for free trials.

In addition to the latest technology, LegalTech offers education. Attendees enjoyed topics such as BitCoin, the Silk Road, billing, ePractice, social media, privacy, Technology Assisted Review and more. Leading judicial voices on eDiscovery were well represented. Federal judges such as the Hon. Shira A. Scheindlin (SDNY), Magistrate Judge John M. Facciola (D. DC), Magistrate Judge David J. Waxse (D. Kan.) and more federal court eDiscovery luminaries were featured speakers.

As with so many other areas, social media is upending traditional eDiscovery. This turbulence is fertile ground for speculation on the next big thing. My prediction: in the next few years, state court judges will become leading voices on how to effectively and efficiently integrate social media into eDiscovery.

The judges will don this mantle because social media evidence plays a much larger role in state court dockets. Thus, state judges will have a unique perspective to offer litigants and will be a valuable addition to technology and eDiscovery panels. (This is not a criticism of LegalTech. There was so much education packed into the show they should give CLE credit in dog years.)

Comparing the discovery of social media evidence to “standard” eDiscovery highlights the value of the perspective from the state bench. The standard eDiscovery scenario is two entities discussing how to extract, review and produce relevant data from their computer systems at a reasonable cost. This is understandable — institutions adopted technology early because they had the wherewithal to manage hardware and software and technology would yield large gains for them. As a result, seminal eDiscovery cases focused upon institutional concerns.

In contrast to standard eDiscovery, social media is personal. Individuals, not institutions, are the vanguard of adopting new platforms and services. People use these tools to replicate what they do face-to-face: share the notable, and quotidian, details of their lives. The simplicity and speed of sharing that makes these services appealing to individuals is a big challenge for hierarchical, brand-conscious organizations.

In light of how easy it is to share personal details, it is not surprising that some of those details could be relevant in claims closely associated with the individual and his/her routine, such as personal injuries, criminal matters, employee discipline, family law matters, non-competes, trade secret theft, etc. Claims involving these kinds of matters will be largely heard in state courts.

Such claims present another unique discovery challenge — balancing privacy expectations against requests for relevant social media. Individuals generating social information almost never expect their data to be discovery fodder. Thus, disclosure of non-relevant portions of their social media accounts can be highly embarrassing.

Litigants routinely seek to prevent disclosure of this kind of material and state judges are called upon to resolve these conflicts, sometimes via a laborious and tedious in camera review of the accounts at issue. Once they have clicked through too many social media accounts, extremely busy state court judges will likely pioneer methods to reduce social media review burdens while maintaining fairness.

As you see, there was no “wow” moment at LegalTech 2014; no technology that will revolutionize how you practice. But the over 175 faculty speakers, aisles and aisles of vendors, and thousands of attendees prove that technology continues to change how we practice law. If we are wise, and a little smart, it will change for the better.

Full disclosure: I received a complementary pass to attend LegalTech and its CLEs. Scott Malouf is an attorney who helps other attorneys use social media, text and Web-based evidence. You can learn more about him at his website (www.scottmalouf.com) and follow him on Twitter at @ScottMalouf. Although he is a good cook, he has been accused of “over herbing.”

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