Photo by David Handschuh/New York Law Journal

 

Retired federal judge Andrew Peck has seen technology make its way into the courts, in part due to his own rulings promoting technology-assisted review (TAR) in e-discovery in 2012's Da Silva Moore v. Publicis Groupe and 2015's Rio Tinto v. Valle. However, he says there is still work to be done to integrate technology into the law,  not only in the discovery process, but in archiving and information governance, privacy concerns around new data sources like biometrics, and more.

As part of the run-up to Legalweek 2020, Legaltech News is chatting with a number of speakers from this year's sessions to know. Today's Q&A is with Hon. Andrew Peck, retired magistrate judge at the Southern District of New York and current senior counsel at DLA Piper. His Legaltech sessions include "Tech Matters: Managing Legal and Ethical Issues at the Cutting Edge of eDiscovery" on Tuesday, February 4 at 11:30 a.m; "Data Privacy and Data Protection Update" on Wednesday, February 5 at 3:30 p.m.; and the keynote "Judicial Foresight is 2020 at Legalweek: A View From the Bench" on Thursday, February 6 at 9:00 a.m.

Legaltech News: What do you think legal tech looks like in 10 years? What will be the biggest opportunities and challenges?

Andrew Peck: Focusing on this question from my specialty area, discovery, I think we will still be trying to apply the Federal Rules (or state counterparts) to the ever increasing amount of digital data and new technologies. We still now, 10 years after the 2006 Federal Rule amendments, are not entirely able to handle discovery involving email; 10 years from now email will have been replaced by text messaging, collaboration platforms, and technology that we can't even think of today.

How are courts treating mobile data differently than other types of data with respect to privacy?

In the civil context, I don't see much of a distinction between mobile data and more traditional data like email. If it is relevant to the claims and defenses and proportional, it is discoverable. The real problem is that individuals and even most companies do not archive text messages, leading to increased risk of spoliation. As to location data from mobile devices, again in the civil context if relevant it is discoverable.

Particularly post-Carpenter v. U.S., what are some of the most recent mobile privacy and protection cases people should have an eye on?

Issues as to biometric data is one area, especially in light of the Illinois Biometric Privacy Act. Also, traditionally asking someone for the password to access information on their mobile device was protected by Fifth Amendment privilege. But fingerprints are not. But some cases now are analogizing making someone open their device with their fingerprint or face to that of the password and granting it Fifth Amendment protection.

And looking at privacy more generally, there still is a conflict between broad U.S. discovery and the privacy protections under the GDPR where the data is abroad. The dilemma of should a party be faced with serious sanctions in a U.S. court for being unable to produce GDPR protected information, or having to violate the GDPR by producing that data. We really need to find a solution to this dilemma.

What is the biggest misconception you think still persists about legal technology?

There are several. One is that "eyes-on" review of "documents" (and that includes electronically stored information) is the "gold standard" because that was the only way to review in the recent past when most senior partners were young lawyers. Studies show that done right, technology assisted review (TAR), also known as predictive coding, is at least just as good as eyes-on review if not better, and at a much lower cost.

Another misconception from some lawyers and judges is that if one just pushes the magic easy button, one can quickly and cheaply review and produce the huge volumes of ESI involved in many cases. That is just not so.

What do you hope attendees take away from your Legalweek sessions?

At least one take away is that lawyers should seek a Federal Rule of Evidence 502(d) non-waiver of privilege order in all cases in federal court (and in state courts under state rules). No matter how careful the review for privilege, with the amount of ESI in most cases, come privileged material is sure to slip through. I call the 502(d) order the "get out of jail free" card—if you have the order, you just claw back the document and the other side must return it, and there is no waiver in that case or any other case in federal or state court even with other parties.