The following is an excerpt from remarks delivered by Southern District Judge Shira Scheindlin on receipt of the Fuld Award from the New York State Bar Association’s Commercial and Federal Litigation section on Jan. 29 at the state bar’s annual meeting. The award was presented by Eastern District Judge Jack B. Weinstein.
I take as my theme today how much the world has changed since Judge Stanley Fuld sat, with the greatest distinction, on the New York Court of Appeals. He began in 1946, the year I was born, and ended 27 years later in 1973, only because he reached the mandatory retirement age of 70.
In 1946, there were no women judges on U.S. Supreme Court, the New York Court of Appeals, the four appellate divisions, the Second Circuit or any of the federal district courts in the Circuit. Constance Baker Motley was appointed to the SDNY in 1966, Ann Mikoll to the Third Department and Delores Denman to the Fourth Department in 1977, Ellen Burns to the District of Connecticut in 1978, and Amalya Kearse to the Second Circuit in 1979. 1980-1987 saw a spate of first appointments of women judges: Sandra Day O’Connor to the U.S. Supreme Court in 1981, Judith Kaye to the Court of Appeals in 1983, Geraldine Eiber to the Second Department in 1984, Betty Weinberg Ellerin to the First Department in 1985, and Reena Raggi to the EDNY in 1987. In 1982, I became the first woman magistrate judge in the EDNY, five years before the appointment of the first woman district judge in that district. Finally, in the second decade of the 21st century, 40 years after Fuld retired, Mae D’Agostino was appointed to the NDNY in 2011, and Elizabeth Wolford to the WDNY just a month ago. Today, more than half the judges of Fuld’s court are women.
But the biggest change of all since 1973, Fuld’s last year on the bench, is the advent of the era of digital technology that has changed the practice of law and the daily decisions of judges, in ways that Fuld and his colleagues could not have imagined.
We no longer handwrite or dictate. Shorthand is long gone. Paper is almost an artifact. Smartphones and tablets are the tools of the trade. Email and text have replaced our voice. Stamps are gone. Overnight mail and faxes have been replaced by PDF attachments to emails.
Social media, blogs and social networks are used by lawyers and clients alike, often creating a record of contemporaneous statements or images, that are incontestable. With electronic filing and hyperlinks, a full docket is available for review at our fingertips and can be carried on a notebook or tablet, with little need for a briefcase. Most documents are text searchable.
It is easy to find each time a particular judge has ruled on a particular issue and lawyers are smart enough to cite that judge back to herself in the hope that she will be persuaded by such powerful precedents. Access to information is available 24/7, for better or for worse.
And this is only the beginning. The devices we all carry—smartphones, tablets or a GPS, to name just a few—track our movements and identify who we contacted, when we contacted them, and where we were when we made that contact. And the electronic trails we leave behind are awesome (to use a word I have learned from my clerks). Every use of a charge card, every Internet purchase, every Google search, is collected and can be analyzed. We can learn what a witness has said in prior public statements as well as on her private social media sites, and often in her emails and text messages. An alibi defense may well be a thing of the past since it will not be hard to prove where someone was at a particular time just by obtaining her cell phone records or the metadata on her text messages.
Data privacy is a huge new concern. We live in a very different world than 1973. Many clients are now multinational businesses, indeed many law firms are international, and lawyers represent clients all over the world. This requires lawyers to be familiar with the data privacy rules of all of the jurisdictions in which they practice and even those to which they travel to meet with clients or gather information.
Most countries have stronger data privacy laws than we do here in the U.S. Privacy is considered a basic human right in many European countries. Personal data—a person’s name, address or contact information—and communications from or to that person may not generally be produced to anyone absent consent or exceptional circumstances. The American concept of privacy is, for the most part, is limited, and the difference between our privacy laws and those of other nations is increasingly a point of tension.
It should be noted that state lawmakers and attorneys general, led by California and New York, are proposing new legislation and directing enforcement activity targeted at privacy protection. With so much data available, we must have a new awareness and concern as to how it can be accessed, who will be able to access it, and what use can be made of it. Just recently, the Supreme Court granted certiorari in two cases about whether law enforcement officials can search cell phones that were properly seized without first obtaining a search warrant.
New words in our lexicon include information governance, big data, data analytics, and cybersecurity. I begin, again, with a look at 1973. At that time there were no personal computers. Digital assistance came in the form of an IBM Selectric typewriter with a small memory card attached. The first personal computers entered the market in the late ’70s with the Atari, Apple and Commodore and in 1981 with the IBM PC and the Tandy TRS-80. These early computers first held kilobytes of data, and eventually grew to hold megabytes of information, which is 1,000 times greater than a kilobyte. Today, your cell phone holds many gigabytes of data, a gigabyte being 1,000 megabytes. We now measure data held by individuals in terabytes (1,000x greater than a gigabyte); corporate data volumes are measured in petabytes (1,000x greater than a terabyte), and global data is measured in exabytes (which is 1,000x greater than a petabyte). While the amount of data has increased exponentially, the cost of data storage has dramatically decreased. With so much data available, we need to think about the uses that will be made of that data and how it impacts the practice of law.
Information governance is a new discipline that hardly existed in 1973. The goal of information governance is to actively manage the data maintained by an organization by eliminating superfluous data and preserving—in an organized, useful, and retrievable way—data that is useful to the organization, including that needed to prosecute or defend litigation. The safe disposal of data is tricky and careless disposal of electronic information—even as little as resides on a photocopier whose hard drive may contain social security, credit car or health information—could harm many people.
Big data is a volume of data larger than we can make sense of using conventional tools. It is a volume of data so large that it must be analyzed using powerful computer hardware and sophisticated software programs. Big Data demands new thinking in Information Governance. The billions of tweets held by Twitter or the petabytes of posts on Facebook reveal trends and patterns that have enormous commercial value and support unprecedented intelligence gathering, with the attendant potential to do great good and great harm.
And that brings us to data analytics which is the use of statistical modeling and machine learning to sort, search, categorize, and glean information from data. Advanced data analytics minimize the tedium of reviewing vast volumes of data and detects patterns that might not be apparent to human reviewers. Your e-mail spam filter is a common example of advanced analytics. Lawyers use data analytics to speed the review of documents in discovery. Elsewhere, algorithms track the websites you visit and the links you click. Merchandisers analyze your buying habits. Your computer knows whether you’re likely to buy sneakers in the next three weeks, maybe before you do! And websearch data can track the outbreak of diseases around the world.
Law enforcement uses data analytics to identify suspicious activities. While these law enforcement techniques may prove effective, they are obviously highly intrusive. Surveillance teams routinely study the Internet activity of subjects of interest. The NYPD has 350 analysts who obtain data by monitoring Twitter and other social networks. And as we now know, the NSA has gathered data regarding millions if not billions of cell phone calls made or received.
While these cutting edge technologies can be socially useful— as in the example of tracking and treating epidemics—the downside, is a potentially great loss of privacy. Balancing the goals of intelligence gathering for national security or for commercial purposes against the desire to maintain personal privacy is a challenge we as lawyers and judges will face more and more in the years ahead. Indeed, President Obama recently spoke about the delicate balance between national security and privacy, and appeared to thread the needle very, very carefully, also known as dancing between the raindrops!
Cybersecurity is the science of protecting our data from hackers and garden variety data breaches. These go far beyond just password protection, data encryption and malware detection. Today there are sophisticated means of intrusion detection which recognize suspicious behavior and prevent strangers from abusing our credit information, accessing our data or sabotaging the critical infrastructures that supply us with power, water and other essential services.
Another technique is so-called “penetration testing,” hiring an expert to see if he/she can break into the system, which alerts the organization to the need for more security. Again, just recently, in a spectacular failure of cybersecurity, hackers were able to obtain the personal data of 110 million Target shoppers. One can only imagine the lawsuits Target may face as a result of this security breach.
And then there is the world most familiar to us—e-discovery—the reason I was chosen to receive [the Fuld] award. E-discovery has revolutionized pretrial discovery. I have already described the data explosion from kilobytes in 1980 to exabytes today. Once upon a time information doubled every 150 years, then it became every 50 years, then every 10 years, and now it doubles every year.
In 1973, lawyers working on big cases searched warehouses with boxes of documents and reviewed them by hand, employing many associates to conduct “doc review” —the task that drove more lawyers out of big law than any other. Today lawyers can search millions of records with the assistance of technology—keyword searching, advanced analytics, and technology assisted review—to locate relevant and non-privileged information.
My final thoughts are with respect to the way in which technology has impacted the judicial branch. The biggest change is probably electronic case filing which gives judges 24/7 access to every document filed in a case. Judges and their staff can download these documents to their tablets and read briefs on the airplane or the comfort of their home study.
Lawyers file documents electronically with a click of a button and are alerted by email whenever a document is filed in their case. The public has easy access to our dockets, which increases the transparency of the work done by the judicial branch and allows researchers to study what we are doing right and what we can be doing better in terms of case management.
The other major change is in the courtroom itself. Judges, lawyers, witnesses and jurors now have simultaneous access to documents used in a trial. Documents can be shown first to the judge, the witness and the lawyers on the screen by activating only those screens, and then to the jurors only when the document is received in evidence. I envision a day when every juror will be handed a clean tablet on which documents received in evidence will be available and searchable and can be used during jury deliberations.
That tablet could also contain the real time transcript of the proceedings, again searchable, as well as the judge’s charge. Witnesses in remote locations can be questioned through Skype in real time so that all witnesses can appear live before the jury regardless of their distance from the courthouse. Reading from a dull deposition transcript should become a thing of the past. Jurors can be given a “virtual” tour of a location or a facility at issue in the trial.
However, the use of technology poses some dangers. In several trials, the court has learned that jurors conducted independent Internet research into disputed issues, thereby obtaining information outside the record. This was always a risk except most jurors were too lazy to go the library. Now, they can look up a technical term on Wikipedia and judges have no way to police this. Jurors are also using social media to communicate with each other and with outsiders about the case on trial or to access the social media of witnesses or lawyers. There is little we can do to prevent the jurors from doing this. We instruct them not to in every trial but cannot monitor their activity unless we take away all of their electronic devices and sequester every jury, which will never happen. The ease of access to vast amounts of information and our ability to instantly communicate with many people is both a positive and a negative that judges must be aware of.
And how safe is our own information? How many judges are up to date on protecting their own privacy and the work of their chambers? Do we unwittingly reveal our metadata when we circulate draft opinions? Do we use our personal electronic devices for business purposes and vice versa, do we realize that our own words and whereabouts can be tracked at all times?
Well, I have gone on longer than I should have and have probably scared many of you into early retirement. I close by noting that the world has changed dramatically since Judge Fuld left office, and we can’t be sure that all of these changes are for the better. We have gained access to a tremendous amount of information, but we have lost something in the way of privacy. Finding the balance between the two will be the great challenge of the next 25 years.
In closing, I quote from a dissenting opinion Judge Fuld wrote in 1964 in a case addressing whether a frisk following a stop was constitutional: “To what end security if liberty be sacrificed as its price? The privacy which the Constitution guarantees is assured to the best of men only if it is vouchsafed to the worst, however distasteful that may be. Thus, although the defendant before us undoubtedly merits the punishment provided by law for carrying a concealed weapon, I venture that it is better that he go free than that we sanction a significant inroad on the rights of all our citizens.” Thank you for presenting me with this award!
Shira Scheindlin is a judge in the Southern District of New York.