Good things in small packages

Although LegalTech West Coast is a smaller show than LegalTech New York, there are some advantages to it. LegalTech West Coast is a great opportunity to get to know the people behind the products as well as the products themselves.

The keynote address presented by Charles A. James, VP and GC of Chevron, was a good starter on what law firms and lawyers need to maintain a profitable business: knowledge management. James indicated that Chevron has yet to see a product that would help them leverage corporate knowledge. In addition, he indicated that existing products don't address the social barriers to KM input. That is, inside knowledge helps one succeed in the workplace. Sharing that knowledge with others will dull your competitive edge and perhaps mitigate your opportunities for advancement. To follow on James' theme, I will get a run down of the KM options available at LegalTech and pass them on.

In the legal technology world, electronically stored information is well known; not so well known are the techniques to get that evidence submitted in court for the judge or jury to weigh. CT Summation put on an excellent event on "How Law and Technology Determine the Admissibility of Evidence." The presenter went through some basic evidence rules that most first- and second-year law students should know in regard to relevance and admissiblity. But my ears perked up when she discussed the Federal Rules of Evidence and the amendments to the Federal Rules of Civil Procedure.

Now, we all know that there have been amendments to the FRCP regarding ESI. However, the Federal Rules of Evidence have not been updated in the same manner. In fact, there remains ancient common law rules operating on ESI, including the rules around chain of custody and the Best Evidence Rule. Despite the old rules, the law admitting ESI in evidence is growing, case by case.

For example, a proper chain of custody for ESI monitors data and includes an audit trail on anyone or anything that impacts the data from the event the caused it to be part of litigation to the court room. Whether or not the evidence is admissible comes down to whether the evidence is relevant to an issue at trial; and then conditional relevance. Conditional relevance goes to the weight that the jury places on the evidence. The bottom line in chain of custody issues: you can make or break your case on the trustworthiness of the custodian. Choose your experts carefully.

In regard to the FRCP, I was reminded today that there is a Rules Enabling Act that limits the scope of the FRCP. In effect, that scope includes activities and events that occur after the complaint is filed, not before. Consider that for a moment and consider that judges will apply sanctions for some activities in discovery that predate the actual litigation. But, according to the Enabling Act, where do judges get that power? There is an article devoted to this topic in the forthcoming issue of the University of Baltimore Law Review (37). Stay tuned.

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[Rich]

The issue of the University of Baltimore Law Review dealing with Electronic Discovery (37 U. Balt. L. Rev. Volume 3) has been released. You can find the articles on Westlaw or Lexis Nexis.