Forecast 2014: Technology Trends And Great New Gadgets

, The Connecticut Law Tribune

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Monique M. Ferraro

This year, we can expect advances in e-discovery, digital forensics and legal technology. While keeping up with that, we can look forward to some pretty smoking gadgets for lawyers, too.

On the e-discovery front, three legal issues are going to be hot in 2014: BYOD; increasing demands for electronic discovery in state courts in civil and criminal matters; and impending changes to the federal rules of civil procedure .

By far the hottest issue centers on "bring your own device," or BYOD, to work. Bending to pressure, information technology and legal staff now allow workers at many companies to use their own personal digital devices for business purposes. However, as communications and work product created and stored on these devices becomes the subject of litigation, the devices are now the subject of subpoenas and demands for digital forensic analysis. The commingling of personal communications and data present challenges can be daunting and, at times, embarrassing to both the personnel and executives who allowed the BYOD practices. Watch for more BYOD litigation in the coming year.

Jeff Bagnell, a Westport employment lawyer who has leveraged e-discovery to his clients' advantage in several cases, hopes that in 2014 the Connecticut judiciary will begin to understand that "the age of paper discovery is over. I find some [judges] who still don't get that, and they think that inspecting a company's computers (even a limited subset thereof) is 'overly burdensome' to the corporation."

Most commercial communication takes place electronically, and the majority of it—85 percent—of all electronic communications are never even printed out. Reliance on paper discovery is ineffectual for obtaining accurate information and will not serve your client's purposes. If you do not understand how to obtain electronically stored information, you need to take a class, hire an expert or both. If you think about where your own information is stored, you can only imagine where the "goods" are stored that you need to discover.

So far, e-discovery has been almost exclusively a civil law phenomenon. Although most digital forensics is conducted in criminal investigations and produced in the criminal court, very few criminal cases involve any e-discovery. If it doesn't happen in 2014, it's going to happen soon—e-discovery is going to emerge in the criminal court. Just as criminal defendants have been accused of utilizing email, social media, websites and electronically stored information to commit offenses, the criminal defense bar will begin to make use of the same types of electronically stored information to defend cases.

Proportionality Rule

Compared to the federal system, Connecticut is in the dark ages of electronic discovery. The Federal Rules of Civil Procedure are facing their second round of revisions to accommodate burgeoning growth in e-discovery in the past decade.

Among the revisions will be a proportionality rule. It provides that parties may obtain electronically stored information that is relevant proportional to the "needs of the case considering the amount in controversy, the importance of the issues at stake, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Many observers believe that the adoption of his rule will reduce the possibility that e-discovery costs will exceed the amount of possible recovery.

In the field of digital forensics, we can expect to be able to retrieve more data from more devices with greater ease. Cellphone and tablet forensics are making up a greater portion of the market. As the use of these devices multiplies, companies such as Cellebrite and Oxygen Forensics issue more frequent and more comprehensive updates to glean information from them. However, they have yet to figure out how to defeat Apple's encryption of deleted information on its iPhone 4s and more recent devices.

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