Federal Judges Weigh in on Technology: “Be Prepared, We Expect More”

 

Innovation, particularly with technology, can be exciting – even sexy. However, with any advancement, comes the need to embrace change.  That is where the promise of innovation can get derailed: most of us hate change.

The legal profession has advanced its use of technology in many sectors, such as with the implementation of sophisticated systems for billing and management of client records. Yet using technology proactively during litigation or trials has noticeably lagged. Up until now, attorneys were expected to have expertise in their area of law, but not in the application of technology to their case’s preparation and presentation.

It appears that is about to change.

At the recent LegalTech Conference in New York City, a panel of five U.S. Magistrate Judges, including the Honorable James Francis, Andrew Peck and Lorenzo Garcia delivered their views on the use of technology in preparation for, and during, legal proceedings.  Their session, “How Is Technology Used in Today’s Courtrooms and Cases,” made it clear that judges are expecting attorneys to embrace technology in the courtroom.

“We’re seeing technology a lot less than we would expect.”
– The Honorable James Francis

This new expectation certainly caught our attention, given that Donoma Software creates software designed to help retain and manage communication records, such as voicemails, instant messages and two-way phone call recordings.

In the past, we’ve received interest from organizations exploring their need to manage records and risk, only to be told by their legal teams that retention of these records is unnecessary. This is despite the revised Federal Rules of Civil Procedure that specifically invoke them; and recent legal precedent that penalized failure to retain such records.  [Zubulake v. UBS Warburg]

The reality is, until the legal profession advises their clients that the need is real, this gap in records retention policy will persist, to many organizations’ detriment.

Now, influential federal judges are weighing in: leveraging, understanding and retaining new streams of communication is expected.  The claim that managing electronic communication records is too “expensive” or “complex” is less convincing as technology has become more accessible.

“We find a lot of reluctance to move on to new technology because it’s different, and it’s hard … You’re going to find those recalcitrant parties who say, ‘I’m going to stick with my quill pen and ink,” said the Honorable Lorenzo Garcia.

“There’s just too much data to try and do it the old fashioned way,”
– The Honorable Andrew Peck.

Overall, the judges on the panel all agree that the court must be cognizant of existing technologies that, if used properly, would efficiently expedite the legal process and potentially reduce the cost of the e-discovery.

While the LegalTech panel is only one data point, taking the speakers’ credentials into consideration, it is clear that there is a growing expectation for today’s legal professionals: embrace innovation, leverage the technology that exists, and stay informed of the rapidly evolving options to use technology to expedite the discovery, pre-trial, trial, and litigation processes. While this change may not happen overnight, with increasing pro-technology attitudes coming from the bench, we expect to see more more legal professionals not only adapting – but leveraging the benefits technology can bring to the process.

To learn more about Donoma Software and its suite of communications records management solutions, visit www.donomasoftware.com .

Ashley M. Stant contributed to this article.  Image credit: Gilles Lambert gilleslambert.be/photography

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