Outside Counsel

There is a school of thought which holds that changes in technology necessitate changes in the law, but I'm not so sure I agree with that. Perhaps the best illustration is e-discovery. When email and word processing became ubiquitous there was a great deal of effort spent wrestling with how parties and courts should deal with the discovery of email strings and word processing metadata, and related issues. To be sure, these were new questions, but at the core of the discussion were two questions. The first was whether this sort of thing should be discoverable; and the second was how the costs associated with electronic discovery should be dealt with. It seemed to me at the time (and it still does) that existing statutory schemes were adequate to answer these questions. The theory of discovery as it has evolved over the past 50 or so years is that a thing is discoverable if it is relevant to the dispute, or apt to lead to relevant information. If that seems broad brush, well, it's supposed to. The whole idea of discovery is that if both sides have the same information both sides are better able to make reasonable economic decisions. ("Of course, the whole point of a Doomsday Machine is lost, if you keep it a secret! Why didn't you tell the world, EH?") It would seem obvious that whether a record is kept on paper, or electronically is irrelevant to whether it is relevant or likely to lead to relevant information, but people still fight about it--  see, e.g., Gilbert v. Highland Hospital __AD3d__, 31 N.Y.S.3d 397 (4th Dept. 2016) is a March decision which involved the discoverability of the electronic audit trail of the plaintiff's decedent's medical records. (HT David Paul Horowitz, who featured Gilbert in this month's "Burden of Proof" column in the New York Bar Association Journal.)

Of course, the larger dispute was always about money. Because electronic materials tend to be -- well, vast is probably not an overstatement-- and because retrieving this materials can require greater technical expertise than merely pulling a manila folder and photocopying its contents, there has been some significant cost associated with producing e-material. You gotta pay the tech guy, and then there is more than usual lawyer time spent reviewing the material, presumably to determine if some privilege attaches to it. An added complicated factor is that judges are not uncommonly the least tech-savvy people in the room when these matters are argued, which means that there is an increased risk of the judge screwing up.

Somehow, however, the law worked itself out. We have US District Court Shira Scheindlin to thank for Zubulake v. UBS Warburg, and I would have left it at that-- my theory about statutes is that they should be kept simple, but the Federal Rules and all of the state court rules of discovery with which I am familiar had to go and be amended to accommodate our brave new world.

I was reminded about this when I came across this article about Space Law. To the extent that public international law is chiefly a matter of norms and treaties it seems to me that our traditional ways of dealing with the issues that are raised above the stratosphere should be adequate -- at least until the Visitors arrive.