Electronic Discovery

An article by Joseph Howie in Law Technology News argues that lawyers who do not become competent in working with electronic data may be committing malpractice. Fair enough. Since most records are now stored electronically, it is a necessity that attorneys understand how to retrieve and work with electronic databases. Furthermore, this article makes the valid point that better knowledge of how to work with computer records may actually save clients money, if it avoids duplication of effort in the form of expensive attorney time reviewing documents.

On the other hand, we can get carried away with electronic data. An industry has sprung up among computer experts who now call themselves litigation consultants, who sell their services in retrieving, coding and otherwise manipulating electronic data. These are the people who basically sponsor publications like Law Technology News. They have a vested interest in generating demand for their services, by creating the fear that unless we hire expensive computer consultants, attorneys may no longer be competent to try cases.

But let's not forget that the skills that were perfected by Cicero can still win cases, not our familiarity with the latest computer technology. I have seen power point presentations that put juries to sleep, while a good old-fashioned argument by an advocate connecting with an audience still has the power to keep people's attention. When we look at courtroom dramas in the movies or television, they keep coming back to advocates standing in front of a judge or jury making an impassioned plea on behalf of a client. Why? Because a good speech is still the most dramatic thing there is. Flashing an electronic pointer at a document on a screen cannot match this power. So electronic data is, while sometimes useful, sometimes over-rated as a visual aid.

If electronic data is not as useful as we sometimes think it is in presenting a case, then its value must lie in building a case. And I would be the first to acknowledge that we must be tenacious in obtaining the documents we need to build a case, of course including the ever-increasing amounts of electronic data. The problem, however, is that there sometimes seems to be no limit to the amount of effort we think we should spend, in asking for every possible document under the sun, in filing motions to compel the production of records that become less and less likely to contain useful information, in repeatedly reviewing, organizing and summarizing the contents of these documents, well beyond what is useful or digestible in presenting a coherent case. When it comes to documents, whether in paper or electronic form, most every case comes down to distilling a few nuggets from a mountain of garbage. So the costs of seeking and utilizing this information must be controlled.

My fear is that electronic data is going to break the back of the litigation system. We need to find some way of taming this monster, or we will have a system that can only be beaten by avoiding it altogether. In many ways, we already have that system.

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Fair Use

Is copyright law moving fast enough to keep up with the explosion of content on the web, and the ease with which it can be copied? An article in the ABA Journal, which is linked to the caption of this post, deals with the question of policing copyright violations pursuant to the Digital Millennium Copyright Act. The article discusses a recent California district court decision, Lenz v. Universal Music Corp, in which the the court held that before sending a takedown notice, a copyright holder has an obligation at least to consider whether the allegedly infringing material constitutes a fair use of copyrighted material. (The case involved a YouTube video of a small child dancing around with a few snippets of a Prince song playing in the background.) While it is easy enough to state the factors that a court is supposed to consider in determining whether a defense of fair use is available--including the type of use, the size of the portion used, and the effect of the use on the copyright's value (17 U.S.C. § 107)--these factors are not so predictably applied in practice. The court stated: "Undoubtedly, some evaluations of fair use will be more complicated than others. But in the majority of cases, a consideration of fair use prior to issuing a takedown notice will not be so complicated as to jeopardize a copyright owner’s ability to respond rapidly to potential infringements." I wonder how the court knows that.

The issue of fair use also comes up in the lawsuit that LA artist Shepard Fairey filed last month against the Associated Press, which claimed that his ubiquitous Barack Obama "Hope" poster infringed the copyright in a photo taken by an AP photographer. Fairey has apparently admitted that he copied the photograph, but relies on the type of use he made, as well as the alterations he made in the process of transforming the photograph into a painting, to justify a claim of fair use. I'm not willing to take a position on this case, except to say that it illustrates that the determination of the fair use defense is often a complicated, fact-intensive inquiry.

What is needed is a simpler way for copyright holders to be able to assert a good faith claim of infringement, and obtain the removal of offending works. What is also needed is a clearer mechanism for content posters to know whether they are entitled to use copyrighted works. (By the way, the illustration accompanying this post, juxtaposing the Mannie Garcia AP photo and the Fairey poster, came from the New York Times website. I say I am making a fair use of this material, but if the New York Times, or the AP, or Mannie Garcia, or Shepard Fairey has a problem with my using this illustration, please let me know and it will be removed immediately.)

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