Program of Instruction for Lawyers: Day 4, Litigation in the Digital Environment

Today, Thursday, June 19, 2003, Prof. Nesson will take us through some of the emerging issues related to practicing as a litigator in a digital era.  This is Day 4 of PIL2003 at HLS.  He starts by picking up on the hypo with which he left the class yesterday.  If you’re a policy-maker in a developing country, should you set a policy that government procurement in software should favor open source?

There are [at least? -Ed.] two worlds: the proprietary world, which is rich with functionality as well as with cash; and the open world, less rich in both regards but safe in terms of piracy.  Should government adopt a preference for open source? Brazil, Argentina, Peru, China, Germany, Thailand, the State of Oregon: all have looked at this question.  [Is it really a question of a 0 or a 1? -Ed.]

A lawyer in the front row: why is this even an issue?  Isn’t it obvious that going open source makes sense to developing countries?

Prof. Nesson seeks some “pros” in favor of the proprietary approach.  From the class: 1) Inertia.  We like the products that we’re used to using, and we’re used to using proprietary software.  2) Hard to find people to sell or support open source (but see Red Hat, says one audience member).

From a tech-savvy lawyer in the back: “MSFT rules the client side, but MSFT has no presence on the server side.  No one knows how to operate .NET and no one cares.”  Nesson: That’s certainly the way things are going.  The geeks operate the big machines and the geeks like open source.  Lawyer: There’s better support for Apache than there is for .NET.  Most of the income is based on consulting and management of projects, while tech development is a loss-leader.

Nesson: Imagine it this way: how cyberspace is built makes a great deal of difference to how it is to live there.  The idea of the commons has had to fight for its existence from the start.  It is this community of open source developers who are developing this commons.

Nesson: Ultimately, the goal is balance.  You don’t want an environment that’s all open — there’s no shelter.  You don’t want an environment that’s all closed — you can’t breathe.  You want a balance in this environment, with some tension.  We certainly have the tension.  I don’t know whether we yet have the balance.

Nesson: This debate is where the tectonic plates are shifting.  Watch out for the SCO v. IBM lawsuit.  It’s an interesting, terrifying approach to shut down LINUX.  1) Litigated in an American court.  2) It’s just the first of what likely will be many legal attacks on the LINUX kernel.  3) MSFT doesn’t even have to bring the lawsuit itself.  SCO does it for them.

Final comment: to keep people from using openoffice or the like, couldn’t you just protect the look and feel (or the user interface) of your popular product?  JZ tells the MSFT story of how to get around the familiarity of Lotus 1-2-3 and trying to get people to use the Excel program with its potentially new commands and interface.  Cited approvingly by Lotus 1-2-3 in the Borland case.

Segues to Digital Voting, one of the topics for today.

What about a digital voting machine?  Is that a good idea?  What if you can’t see the code that runs the electronic voting machine?  Should we require that the code be open source? 

So, if you go to an ATM machine and put the bank-card in and you get a slip of paper back.  In the voting process, people want to have anonymous voting.  At the same time you want to be able to authenticate the votes.  Whatever the guts are in the machine, you can’t get at it.  So, why not have a system when you vote on a digital voting machine, you get a slip of paper, you look at it, you confirm on the machine that the print-out is right, then you drop the piece of paper in a box that leaves a paper record?  Why have governments resisted this process?

Lawyer: Maybe the paper process is prone to too much corruption.

Nesson: Certainly that’s true.  I was overwhelmed, at a meeting in Brazil, when people said how much they trust the electronic voting process.  They say they trust it much better than the paper process, even though they might be crazy to trust the computer programmers.  There is a worry that computer programs, like the paramutual betting system hacked a few years ago, can be tampered with in a non-transparent way.  I don’t get why this belt-and-suspenders approach is a bad one.

Lawyer: Cost may be a factor.  No budget for purchase of electronic voting equipment.

Nesson: Now to Litigation in the Digital Environment.

1930s: Big reforms that made civil litigation no longer a matter of suprise on both sides, but rather a process of discovery is used to show each side what the other side has got.  There are remarkable discovery powers under US law.  There is a huge power to request documents that might relate to your claim.  It used to be that it was all files kept in file-cabinets.  Keeping your records — records management — became big business.

Enter digital information into that structure.  Electronic documents: you’re a lawyer for one party.  Tell me how are they different from paper documents.  1) More easily modified.  2) Signatures are different.  3) Vastly more documents.  4) Very hard to destroy.  5) Storage is different.  6) Legacy data problem.  7) Can send the docs more cheaply to more people, so it can proliferate more completely without your knowledge.

Nesson: certain discovery limitations: there’s a balancing test.  If it’s hugely troublesome and costly, you can go to the judge (typically a magistrate), and tell her that a discovery request is out of balance.  But a judge can, and often does, say that you need to put a better records management system in place — that it’s your fault that it’s so costly to respond to the discovery request.

Basic preservation standard: What can you get rid of?  You have a ton of data.  You leave an amazing digital data trail behind you as a company.  It’s possibly lots of stuff that opponents might want.  What can you get rid of?  You’re not yet in litigation, but it’s a terrible document if you ever are in litigation.

In the US: if you’ve got a document, you own it.  It only becomes something you can’t destroy if someone else develops an interest in it.  It used to be that it’s only once someone has subpoenaed it that you can’t get rid of it.  Over the past 50 years, the standard has inched forward to a less formal standard.  Judicial declaration, post-Watergate, stretched the doctrine.  If a proceeding is going or about to begin, then you can’t destroy the documents.  And it’s an ethical violation if a lawyer destroys a doc that’s needed for filed or pending litigation.

DC Bar Committee has written, related to lawyers’ ethical obligation in terms of document retention: “The test is whether the document destruction is directed at concrete litigation, either pending or almost certain to be filed.”

So companies need programs that allow them to get rid of documents without running afoul of the law.  Here are a few things they need to do: 1) presumptive limitation on retention of emails that are not yet business records; 2) recycle time on back-up tapes; 3) notification and preservation measures for pending litigation; 4) preservation of evidence for potential litigation; and, 5) establishment of system and training of personnel. 

Spoliation: What are the consequences of the intentional destruction of data?  The act of destroying the data itself is potentially very harmful evidence against you.  And such evidence is admissable.  If you destroy a document that you fear is troubling to your legal position, and your opponent learns of it, then there’s a huge risk that such evidence will be more damaging to you than introduction of the document itself would be.  So, the document retention policy should ensure that one can make a good case that the destruction of the document was unrelated to a possible case, that it was just part of SOP.

Sanctions for spoliation: negligent -> fine; knowing -> inference; reckless -> issue preclusion; willful -> default.

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