Welcome to Module 1-I
Times Are Changing: The Lag Between Law and the Rest of Society is Dangerous
The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.
Justice Antonin Gregory Scalia Concurring
Opinion in City of Ontario, California v. Quon,
560 U. S. (June 17, 2010).
This class once again turns to Bob Dylan for inspiration to discuss a core problem in the law today, a problem that is readily apparent in e-discovery: most lawyers are technophobes. The legal profession, judges and lawyers alike, are having trouble keeping up with the rapid technological changes that are transforming our world.
‘The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.
Justice Antonin Gregory Scalia Concurring
Opinion in City of Ontario, California v. Quon,
560 U. S. (June 17, 2010).
Justice Scalia may not be one of your favorite judges, but in this one line in Quon he sums up a core problem with the law today. Not surprising, he does so by borrowing from the unacknowledged poet laureate of our age, Robert Allen Zimmerman (aka Bob Dylan). Here is the context of this quote in this concurring opinion to Quon:
Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court’s implication, ante, at 10, that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action)—or that we should hedge our bets by concocting case- specific standards or issuing opaque opinions—is in my view indefensible. The-times-they-are-a-changin’ is a feeble excuse for disregard of duty.
I agree with the late Justice Scalia (a rare occurrence). The Quon decision is opaque and merely case-specific. It is of little value to attorneys and employers. We are still in the dark as to what we can and cannot do in this area. So too are the judges who must decide electronic privacy disputes. But the profundity of Scalia’s comment goes beyond this particular case. I do not know if Justice Scalia realized this or not when he wrote his dissent, but the whole profession, not just the Supreme Court, is shirking its traditional duties simply because new technologies are sometimes difficult.
The Lag Between Law and the Rest of Society is Dangerous
Lawyers and judges are not keeping up with technology and this failure is endangering our whole profession, indeed our whole way of life. If we do not keep up, if we disregard our duty of competence and diligence just because it is hard, just because the-times-they-are-a-changin’ so fast, then we fail as lawyers. This weakens our whole legal system. That is a big deal in a country like ours, where we govern by laws, not people; where we take our fights to court, not the street.
Although we govern by law, not the whims of dictators, our laws, our courts, are run by people, they are run by lawyers and the other professionals who work with lawyers. We lawyers have to keep up with the changing times or risk becoming irrelevant. We have to try harder. Failure is not an acceptable alternative. Lawyers must understand the world in which they live in order to do their job effectively. When it comes to technology, most of us are failing. As George Paul puts it in his book Foundations of Digital Evidence (ABA 2008):
Quite simply, how can lawyers of the new millennium do their jobs without understanding basic concepts about digital evidence? Without an understanding of how to test, prove, or attack the information of our new age, aren’t lawyers mere ghosts of the past? Where should we test and probe, and where do we shore up? Do we understand the new information well enough to do these traditional jobs?
Is Our Supreme Court Hopelessly Out of Touch?
Is our Supreme Court a dead-end filled with judges who are ghosts of the past great jurists? Are they becoming obsolete because they cannot understand something as technologically simple as a pager and as ubiquitous as a text message? Justice Scalia seems to sense this and so invokes Dylan to chastise the rest of the justices. He accused them of dereliction of duty because they refused to decide the important issues raised by Quon. They did so primarily because the case involved technological issues beyond their kin.
Frankly, it seems like any technology originating after 1950 is beyond the comprehension of certain justices of the Supreme Court, including especially its fearless leader, Chief Justice John G. Roberts. Our top judge is said to write his opinions in long hand on pen and paper. We know at the oral argument in Quon he asked: “What is the difference between the pager and the e-mail?” Were his law clerks who briefed him on the case clueless too? I note that the Ivy League schools who supply most of the clerks for the Supreme Court have no e-discovery classes. Do you think the Justices consider their technological savvy in deciding whom to hire? Would they even know?
The other justices of the Supreme Court appear to be no better equipped to understand the technological world in which the rest of us live. For instance, the author of the Quon opinion, Justice Anthony Kennedy, asked during argument what would happen if someone was sending a text at the same time another was texting them, would the pager say ”Your call is important to us, and we will get back to you?”
The Lack of High Court Leadership Ups the Ante for Lawyers
There is no escaping the inevitable conclusion that we are led by ghosts of the past. We cannot expect any solutions to problems arising from technology to be provided to us from above. Our courts are reflective of their leaders. With Quon as a shining example, they will all be inclined to punt any time something remotely technological comes before them. No, the answers will not come from the high courts, they will have to come from us, the rank and file legal practitioners.
Do not expect the trial judges to do your work for you either. Most are old-school like our appellate courts. Thank God there are a few brilliant exceptions on the bench. Some judges are real, they are in touch, they are online, and they get it. They write the e-discovery opinions that provide important guidance to us all. Still, these few ghost-busters will not be enough, and their important work will fail, if they are not supported by vast numbers of lawyer practitioners and by our law schools.
So far, most academics are not stepping up to the plate. Most seem as clueless as our Justices. They teach civil procedure and spend only five minutes on e-discovery by mentioning Zubulake, which they all seem to mispronounce Zoo-Boo-Lakie. Most professors, like judges, have no first hand experience with e- discovery. When they were practicing attorneys (if they ever were), there was no such thing. Out of sight, out of mind. It is like Plato’s analogy of the cave, all they have ever known are paper shadows. Thank God for the exceptions like Professor Steven Gensler, the University of Florida, Georgetown, and a few others.
We need a much stronger response from our law schools if we are to remain relevant. Offering a two-credit course once a year may be better than nothing, which is still what most schools do, nothing, but it is still woefully inadequate. Electronic Discovery should be a three-credit course offered every semester by every law school in the country. Advanced classes should be offered too. Otherwise, we will continue to graduate students unprepared for modern legal practice. Our Justices and their clerks will continue to wonder what the difference is between a pager and an email, a tweet and a twat.
Dylan and e-Discovery
One of my favorite student assignment is to come up with a Bob Dylan quote that seems somehow appropriate for e-discovery. I first give students some examples, like the Ballad Of A Thin Man, mentioned earlier in Module 1-D.
To continue this tradition, one that Richard Braman of Sedona especially liked (he loved music and Dylan), I challenge you dear students to find some more Dylan songs, and explain how and why the lyrics they select are relevant to e-discovery. I have received some great answers in the past. Here are just a few:
Trust yourself to know the way that will prove true in the end.
Trust yourself to find the path where there is no if and when.
Don’t trust me to show you the truth
When the truth may only be ashes and dust.
If you want somebody you can trust, trust yourself.
STUDENT: I think this applies to e-discovery and cooperation because even though you should cooperate with opposing counsel, I think it is important to be-come acquainted with e-discovery yourself and know what’s going on so you can make an informed decision as to what is best for your client. As Bob Dylan says, I think at the end of the day you can only trust yourself, and this certainly applies to making a competent decision as an attorney.
The judge, he holds a grudge
He’s gonna call on you
But he’s badly built
And he walks on stilts
Watch out he don’t fall on you.
STUDENT: My legal education so far has taught me that judges hate it when you waste their time and aren’t completely honest to them or to your duties to the court. This strikes me as coming in a situation where a counsel in discovery has not fulfilled their obligation to attempt to craft a discovery plan in good faith, where this is done with little to no reason by the bad acting side, when called on, they generally don’t have an answer for delaying or impeding discovery. The judge is not badly built, but the foundation he has, specifically the FRCP are, they are very vague when it comes to discovery, and if the judge can hold a grudge as we have seen in Coleman and Zubulake, when he falls on that opposing counsel, it is in the form of sanctions, they can be quite painful, almost like being fallen on by someone with stilts, that extra height harnesses the gravity, and messes you up.
Nothing (i.e. relevant discovery) was delivered
But I can’t say I sympathize
With what your fate is going to be, (i.e. sanctions)
Yes, for telling all those lies.
Now you must provide some answers (i.e. cooperate!!)
For what you sell has not been received, (i.e. time wasted)
And the sooner you come up with them,
The sooner you can leave. (i.e. the sooner you cooperate, the
sooner we can try the case on the merits!!)
I saw ten thousand talkers whose tongues were all broken
I saw guns and sharp swords in the hands of young children
And it’s a hard, and it’s a hard, it’s a hard, it’s a hard
It’s a hard rain’s a-gonna fall.
STUDENT: This is similar to cooperation because the older lawyers are used to “talking” and holding back as much information as possible, but their “tongues are broken” because they now must change their ways in the new era of e-discovery. Also, new lawyers are like the young children with guns/sharp swords because they have a lot of power but don’t know how to use it. They could continue in the ways of older lawyers and use the holding back of information as weapons, but it doesn’t seem very smart (just as it doesn’t seem very smart for young children to have weapons).
So many roads, so much at stake
So many dead ends, I’m at the edge of the lake
Sometimes I wonder what it’s gonna take
To find dignity
STUDENT: Attorneys certainly seem to have a poor reputation. This is especially bothersome due to the high position that attorneys hold in society. Despite an attorney’s “Creed to Professionalism” to further the profession’s devotion to the public good and to be guided by honor and integrity, I think the discovery abuses that we have studied in this course seem to indicate that attorney’s are not taking their role of advocacy in high enough regard.
With clients’ lives, property, and well-being at stake, an attorney has a duty to educate himself about the proper method with which to deal with e-discovery issues and act accordingly. Instead, clients are being short- changed by attorneys acting without any dignity. A lot is at stake, but attorneys are leading clients into dead ends over e-discovery issues.
What is it going to take to encourage an attorney to take his superior role more seriously, what is it going to take to find an attorney acting with dignity in relation to this matter?
Justice Scalia makes a good point in Quon, we have to keep up with the changes and understand difficult technologies, or get out of the way and make room for those who can. I end this essay with the conclusion of Dylan’s famous lyric that apparently even the most arch-conservative Justice on the Supreme Court admires.
The line it is drawn
The curse it is cast
The slow one now
Will later be fast
As the present now
Will later be past
The order is Rapidly fadin’.
And the first one now
Will later be last
For the times they are a-changin’
SUPPLEMENTAL READING: Read the U.S. Supreme Court decision were the court affirms the, for them, radical observation that smart phones today are little computers and have a lot of personal information in them all deserving of privacy protection. Riley v. California, (2014). Old before his age Chief Justice Roberts who authored this unanimous opinion said comparing physical and digital searches,“is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.” Roberts also observed:
Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras,video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.
One of the most notable distinguishing features of modern cell phones is their immense storage capacity.
This is probably a big duh to you, but to our high court, it is a major breakthrough.
Non-Mandatory Additional Reading: Look at some of the articles written on Riley. Think about what some of the long term implications may be of this decision. Also think about what will change may incur in the future as Presidents appoint tech-savvy judges. This is bound to happen, if for no other reason than age.
EXERCISE. Bob Dylan is not the only great song-writer poet of our age, although he may be the best. Think about some other lyrics you know from other song writers that may have e-discovery applications and leave a comment below sharing your insights
Discretionary Bonus Exercise: Write your own song, poem, cartoon, photo, music, video, picture, etc., and post or link to it in the comments below. Also tell us what it has to do with e-discovery, or let us guess. Your option.
Students are invited to leave other general public comment below. Insights that might help other students are especially welcome. Let’s collaborate!
Copyright Ralph Losey 2015