Government and business are increasingly attempting to regulate and limit the use of digital technology due to heightened fears over privacy, identify theft and litigation.
And that’s often bad news for lawyers.
At the very time attorneys are beginning to rely more heavily on such technology to win cases, they are often struggling to get their hands on automobile “black box” data, videos of medical procedures and crucial e-mails.
Currently, eight states- Connecticut, Massachusetts, Montana, New Jersey, New York, North Dakota, Virginia and West Virginia-have legislation pending to regulate so-called black boxes, the hidden computer chips on automobiles that store information on speed and seat belt use.
According to the National Highway Traffic Safety Administration, 15% of all vehicles-30 million cars and trucks-have black boxes. And roughly 65% of new cars sold in 2004 had them. The highway administration has recommended that all vehicles have black boxes by 2008.
The proposed laws require that drivers be informed if their car is equipped with a black box. Some laws also aim to clarify who owns the rights to the black-box data, a provision that interests attorneys because some car manufacturers have refused to turn over such data in litigation.
Pandora’s black box
In North Dakota, for example, lobbyists for the automotive industry did attorneys a favor when they convinced legislators at the last minute to amend a bill so that black-box data can be used in court.
The initial proposal called for prohibiting the data from being used in court proceedings to protect consumers’ privacy-a position that baffled the auto industry.
“To say this information that you have just can’t be used in court-I just can’t understand what the societal benefit is,” said attorney and General Motors Corp. lobbyist Thomas Kelsch of Kelsch Kelsch Ruff & Kranda in Mandan, N.D. “Some of the senators didn’t want [black-box data] to be used at all in court in any event, and that was a big issue.”
The final bill, which is awaiting the governor’s signature, allows for black-box data to be used in court if there is a court order or owner consent.
Kelsch argued that black-box information is both a safety and liability issue for the automotive industry, which uses the data to determine how air bags are working. The evidence is also used as a defense in products liability suits, he noted.
Ford Motor Co. spokesman Dan Jarvis said Ford’s policy regarding black-box data is that the information belongs to the owner, and that Ford turns it over in litigation when the owner consents, or when there is a court order.
Responding to allegations that auto companies are sometimes reluctant to release black-box data to opposing attorneys, Jarvis said that, in those instances, it is likely there was no court order or owner consent. “We respect the privacy of our customers and we consider this black-box data is owned by the vehicle owners,” Jarvis said.
Houston attorney Rob Ammons, a products liability specialist, has had a tough time getting some auto manufacturers to turn over black-box data.
“I certainly don’t think that it’s fair that only the manufacturers should hold the key to the lockbox and prevent consumers and lawyers from having access to it,” said Ammons of the Ammons Law Firm in Houston. “Generally, courts prefer to decide cases on evidence and what it reveals, not what it conceals.”
Ammons noted that black-box data helped him secure a $3.5 million settlement last year on behalf of the family of a cab driver who was killed in a car accident. In re Estate of Hillary Nwanne, deceased, No. 347,192-40 (Harris Co., Texas, Probate Ct. No. 2).
Ammons said that about a year ago, his firm purchased software to download black-box data from car accidents rather than rely on expensive experts to do it.
“Memories can be bad. Perceptions can be wrong. People can have different motivations for what they say,” he said. “But physical evidence and electronic evidence, if reliable, is relatively unbiased.”
The video problem
Digital videos have also come under tighter grips as a growing number of doctors are refusing to allow parents to record births because they fear malpractice claims.
Seattle trial attorney David Beninger, who handles medical malpractice and products liability suits, is concerned about a trend by doctors and hospitals nationwide to restrict the use of video cameras at childbirths.
Beninger of the Luvera Law Firm in Seattle relied on a personal video in securing a $2 million settlement for a family that sued over the death of their child. Degel v. Anderson, No. 99-2-08978-1 (Snohomish Co., Wash., Super. Ct.). He argued that complications in childbirth caused the baby to get sick and eventually die of pneumonia, which contradicted the medical records.
“My position is: A doctor that is concerned at all about frivolous lawsuits and malpractice should welcome videotapes,” Beninger said. “A doctor who has nothing to hide should embrace this.”
Larry Veltman, who chairs the professional liability committee for the American College of Obstetricians and Gynecologists, noted that doctors are moving further away from allowing videos of childbirth. But it’s not because they have anything to hide, he said.
“Attorneys may disagree with this, but this is primarily about patient safety and our ability to do our jobs in a safe way,” Veltman said.
Criminal defense attorney Timothy Rien, a solo in Livermore, Calif., noted that he too has had to jump through hoops in recent years to obtain electronic evidence from opposing counsel. He said while he does have some reservations about technology and its impact on people’s privacy, he said that he would rather litigate in a world that has such technology than in one that does not.
“I’m not going to cut my nose off to spite my face,” said Rien, who has relied on black-box data to win lawsuits. “We’ve got to be vigilant in balancing what benefits we get from technology against the burdens we suffer from its misuse.”
The e-mail arena
And then there’s e-mail, which is described by many lawyers as the hottest area of litigation. Companies and attorneys are at war over what a business must do to produce e-mail records, and who is going to pay for it.
“New rules are trying to address the burdens and the degree of how far does a company have to go to produce these e-mail records,” said attorney Eric Rosenberg, an e-mail policy expert and owner of Litigation Proofing, which counsels companies on electronic record-keeping.
The new rules that Rosenberg is referring to are recent proposals by the Judicial Conference of the United States, the policy-making arm of the federal courts, which has proposed amendments to the federal rules of civil procedure that will clarify to what extent companies have to save and recover e-mails, as well as who is responsible for paying for it.
Lisa Sotto, a privacy expert with the New York office of Hunton & Williams, said there is a great need for for new rules surrounding electronic data. She noted that discovery rules, which treat e-mails the same as paper records, need to be changed because they place an unfair burden on companies ordered to dig through potentially millions of records.
“You could have this enormous fishing expedition,” she said. “Who is going to bear the burden of that cost?”
Kevin Lyles, who chairs the privacy practice for Jones Day in its Columbus, Ohio, office, agreed, saying plaintiffs’ attorneys often use e-mail requests as a weapon to secure a settlement. He said that some companies might prefer to settle a case than to dig through countless computer files.
Lyles added that companies don’t refuse to turn over e-mails because they don’t want to, but because it can be an enormous task.
“Electronic discovery lawsuits are just an enormous challenge for big business,” Lyles said. “When you get a discovery request for e-mail, how do you go about doing that as a corporation short of having every employee looking through their files. It’s a huge challenge.”
“Well that’s too bad,” said Tom Vesper of Westmoreland Vesper & Quattrone in Atlantic City, N.J., who argues that if there’s an electronic record out there that proves a case, then a company is obligated to find it and turn it over.