The upcoming year will present lawyers with familiar but more pressing issues — and bring faster, shinier, more convenient technology. Not all of the technology developments for next year will be bright for lawyers. There are some great gizmos and technology to make us more effective. But, there are challenges for us to meet.
“Bring-your-own-device,” or BYOD, has been heating up for the past few years. Law firms, business and enterprises have been pressured to allow employees to use their personal laptops, pads and smartphones to conduct business and access business resources. While lawyers are usually blamed for holding up progress, when it comes to BYOD, it’s the information technology gurus pouring water on the flames, and with good reason.
On the upside, BYOD leverages the economic benefits that come from employees doing their own research, making their own purchases and, at least theoretically, enhancing productivity because they are using devices of their choosing. There are two down sides. The first is ensuring the security of the information contained on the devices. Enforcing security mandates on company owned machines is easier than on personal devices. Barring company audits of personal devices, the employer is in a position where it can only react to losses when they occur rather than preventing them beforehand. Consider your own laptop, tablet or smartphone. There’s a very good likelihood that it contains client data, including privileged communications and work product. The speed of light is slow in comparison to the time it takes for a knot to tighten in one’s stomach upon the realization that the unsecured device is lost or stolen.
BYOD can be problematic for electronic discovery. Personally owned devices will undoubtedly contain a mix of personal and business data. When electronically stored information is subject to discovery, the devices themselves will undoubtedly be requested in at least some cases — not only the data contained therein. How can the employer ensure that all relevant data from a personally owned device is produced — whether the information benefits the employer’s cause or the other side’s?
The intersection of technology and our ethical obligations — how we communicate with clients, retain privileged and confidential data and how we advise our clients — will be subjects of discussion, education and policy development.
Ethical responsibilities of attorneys when using cloud applications and storage continues to be difficult to navigate. Some say that the cloud is at least as safe as walking down the street holding your laptop. After all, your laptop can be stolen and your clients’ data along with it. Others express grave concern that data stored in places outside attorneys’ control is at risk of breach, theft and destruction. Look for developing standards, but be mindful in the meantime.
At least a modicum of technology fluency is required of all attorneys, according to new comments to the American Bar Association’s Model Rules and a number of ethics decisions. For those who can’t achieve minimal proficiency, they must retain competent assistance. More and more, attorneys are held accountable for knowing what electronically stored information can be obtained to support their clients’ case and how to access it. To properly counsel clients, it’s essential to understand, or at least retain someone who understands, the rapidly developing electronic discovery technology and resources.
In 2012, we saw “predictive coding,” a combination of early case review, search and review technologies, advance from something on the periphery to technology accepted in several cases to something mandated by the court. While most attorneys struggle to keep pace with the basic concepts of electronic discovery — the litigation hold, assessing sources of potential evidence, choosing the appropriate party to collect, collate, review and produce the data— court mandates to utilize advanced technology have kicked e-discovery up a notch. We’re looking at a future where the technology fluency of attorneys will separate clients into groups of litigants who have knowledge of and access to the biggest and best discovery technology from those who don’t, and the differences will be determinative.
With increasing data sizes a given, those who won’t have access to the lawyers and technology at the forefront of e-discovery will be effectively denied their day in court. Those lawyers and litigants adept at navigating the e-discovery landscape will prevail because they will be able to home in on the most data that’s pertinent in the most cost effective ways. Information has always been king. Moving forward, the most efficient access to the most salient information will reign. The new year will certainly see swift developments in electronic discovery technology, mandates relating to its use and ethical standards relating to advising clients regarding the technology.
In late 2012, ICANN, the Internet Corporation for Assigned Names and Numbers, started drawing names in its lottery that determines what order applications will be considered for generic top-level domain names.
You already know what a generic top level domain name is — think about .com, .org, .net. Currently, there are about 20 top-level domains and 280 country codes. In 2013, ICANN will dramatically broaden the number of domain names. It will no doubt accept some applications and reject others, but you can expect to see domain names such as .google, .book and .microsoft. According to Richard Harris, of Day Pitney, “There should be some good fights. . . We hope none of our clients get caught in the crossfire.”
As for hot gadgets, tablets and smartphones will continue to rule. The new BlackBerry operating system will debut soon, which promises to incorporate a faster browser and touch-screen while maintaining the fat-finger-friendly keyboard, security features and separate profiles for business and personal use — an attempt to make the device more BYOD friendly. The Microsoft operating system for smartphones is showing up on more devices and is available from more providers, but sales continue to disappoint. The new year will tell whether or not the iPhone 5 will penetrate the market despite its departure from the standard charger and size.
Tablet computing will see more competition in 2013. Microsoft’s Surface and Google’s Nexus 10 compete directly with the iPad 4, offering cheaper alternatives. The Surface boasts relatively large storage capacity and a keyboard that emulates a fuller sized laptop. However, it won’t run older software, which could be a big limitation. Google’s Nexus 10, runs the Android operating system and delivers great graphics. The iPad will have to fight to retain its hold on the market.
Rapid advances in technology will challenge and dazzle us in the new year at work, in our professional lives and in our personal choice of the next best and new thing.•