E-discovery deals with the laws of the acquiring of information that is electronically stored and the usage of that information during a lawsuit in the proceedings’ investigative phase known as discovery. Each side permitted to obtain and request information from a witness or outside entities as well as from the other party during the discovery. The historical meaning refers to the exchange of tangible evidence and various documents and interview with the witness. E-discovery differs from the traditional discovery because of the use of tangible electronic evidence although some features are the same. The electronically stored information (ESI) refers to any website, video, accounting database, instant message transcript, e-mail, image and document that can be used a lawsuit as relevant evidence.
Meta-Data
Meta-data refers to information showing who revised a file, who accessed it when it occurred, even copies of the file’s previous versions. The various data coded in files in the form of meta-data has increased the range of investigations in the e-discovery. Meta-data contained in the files increase the relevancy of electronically stored data hence making them more useful in lawsuits. Attorneys have found exciting new challenges as a result of meta-data. It can give the investigator a new insight of the persons who have worked on the file, the changes they made and when it happened. As a result, it will be possible to determine the party that has engaged in evidence tampering and to solve cases where one party accuses the other of evidence spoilage. Law firms can help businesses to establish policies for retaining or handling materials that may be used later for e-discovery especially for disclosure or creation of meta-data that is potentially harmful.
Federal Rules of Evidence and Federal Rules of Civil Procedure of e-discovery
The e-discovery process should comply with the Rule of Evidence and Federal Rules of Civil Procedure amendments. The FRE and FRCP apply to the process of producing and preparing ESI. Some of the FRCP provisions are illustrated as follows. The FRCP 26 protect from e-discovery requests that are expensive and excessive, except when the protection is not deserved. The FRCP 26(a)(1)(C) requires that initial disclosure is made within 14 days after the Rule 26(f) which deals with meet and conferring, unless a court order or stipulation sets another time. The Rule 26(f) is referred to as meet and confers rule that requires all the parties involved to meet not later than 99 days after the filling of the lawsuit. The FRCP 33gives the requesting party access to records of a business that are kept or created in electronic format by defining the as discoverable. The FRCP 45 protects a person who is a nonparty to e-discovery from costs that parties are expected to endure.
Constraints on the Adoption of Legal Technology
Technical Constraints: the legal technology implementation is limited by some technical barriers especially the artificial intelligent (AI) technologies according to Simon Chester. Constructing algorithms that properly capture all useful aspects of law due to the complexity of the law. For instance, the differences jurisdictions make the answers to legal questions to vary greatly. Only small number of legal problems require no or yes answers. The complexity of legal reasoning provides a barrier to useful legal technologies implementation. Some critique argues that legal reasoning is a parallel process because the answer to a question may change the potential question to be asked subsequently. Therefore, the difficulty may disrupt the computer’ ability to deliver the required answers to the legal questions.
Economic Constraints: economic constraints have been identified as another barrier to the technology application in law. It is because of the small number of investors in legal technology. The legal service providers find may find it challenging to acquire technologically innovative developers since they tend to concentrate in larger markets such as financial services that have high potential profit. The fragmentation nature of legal services market makes proper technology implementation difficult. Most of the big players in the legal services market are not willing to implement and develop new legal technologies. Therefore, the technology impact in legal practice is hindered by the economic forces. However, the economic barriers that have been identified may only have a short-term effect on the legal technology development. If the new legal technologies can lower the legal services cost, then the size of the legal market will increase and become more lucrative for technology developers.
Law cases
Oracle v. Google
Two questions arise from the long-running lawsuit that Oracle filed against Good for Java code implementation in the Android OS. The first question is whether it is possible to copyright the application programming interfaces (APIs). The second question is whether a developer may repurpose portions of the APIs under the fair use doctrine without a license if they are copyrightable. The court ruled in the first trial in 2012 that Google had copied Java portions but the portions copied were mere APIs hence the copyright law does not protect them. However, the decision was reversed by Federal Circuit in 2014 on the basis that copyrights can be used to protect organization, sequence, and structure of an API. The court ruled in the second trial fair use protected the API used by Google and that unauthorized use is permissible since it serves the public interest hence making Google be the winner of the lawsuit.
Future of legal technology
The legal profession has undergone numerous technological transformation in the recent past from the courtroom, and offices layout and communication methods to the way lawyers present cases and prepare for trial. The present and future legal professionals must process and handle a large volume of information and at the same time communicate with geographically dispersed clients and colleagues. Most Law firms are currently using platforms for online knowledge sharing such as SharePoint to make virtual interaction with clients and among colleagues who are geographically dispersed easier. The Software as a Service (SaaS) has made it easier for legal professionals to access and share information. SaaS is a cloud-based service that the general public can access such as Google Docs. Law firms will use secure SaaS tools to store and backup documents electronically and in general accounting functions management. The United States lawyers use SaaS applications to send encrypted messages, develop secure online portals for clients and remotely access case files from any device. The legal professionals will be able to access data and information all the time due to the growing use of tablet computers, smartphones, and cloud-based tools.
Conclusion
The change in the field of law has been enabled and driven by technological advances. The technologies used in the information sharing has facilitated flexible, continuous and instantaneous modes of communication between the lawyers and their clients. Technology has also made significant contributions in the e-discovery although there are several challenges encountered. Even though the legal field is not at the forefront of technological advancement, it is catching up with other fields such financial and medical field. The legal professionals will be motivated to adopt the innovations when seeing the benefits of the recent technological tools.
