PREPARED BY: GEORGE SOMKUTI
presented March 17, 1998
Edmonton, Alberta
@ Grant MacEwan College
and March 24, 1998
@ Calgary Convention Centre
I. INTRODUCTION
Technology is an ever advancing juggernaut which is rushing forward, whether we want to keep pace or not. It has impacted on virtually every aspect of the legal profession. If you attended law school within the last 20 years, electronic legal research was a part of the curriculum. At least at the University of Alberta, computers and technology became integrated with the practice of law at the earliest opportunity.
In our every day practices, we do some or all of the following: Check a number of electronic sources for information such as our electronic schedule in the morning, voice mail, e-mail, the firm’s website for any messages, your favorite websites for updated information or QuickLaw for the latest decisions and legal commentary. You might start work by using an electronic timekeeper to track your billables and post .1’s to the firm’s accounting program. You can now speak normally into your personal computer and the words can be converted instantaneously into text in a letter. A simple voice command will fax or e-mail the document to its destination. We rely on technology to track our time, create our documents, manage clients or organize files, record and remind us of limitation dates, reconcile accounts and generally make our practices more manageable.
Litigators know only too well that technology has been affecting their practices more and more and this paper will touch on a number of effects of technology on litigation. In particular, issues relating to discovery of electronic evidence will be explored. There is a list of references and resources at the end of this paper. This work is also posted on our firm’s website at http://www.camllp.com under “Articles” where most of the resources are hypertext-linked to their original sites.
II. PRACTICE
Most of us have taken for granted that computers and technology will help us with document assembly, conflict searches and limitation dates. But have you considered using video conferencing to have a face to face with your client, expert witnesses, other counsel or judges? The Supreme Court of Canada has been using video conferencing for Leave Applications since 1985.
New communications technology is affecting our practices and is even impacting solicitor/client confidentiality and privilege.(1)
As lawyers, we have a duty to maintain the confidentiality of our client’s matters. It has been suggested that e-mail and cordless phone calls are so easily intercepted that there can be no reasonable expectation of confidentiality. Use of these modes of communication by lawyers may waive privilege on the subject matter. In this competitive marketplace, where we feel pressure to streamline our practices and lower our overhead, professional obligations can be compromised in an effort to become more efficient and responsive to our clients’ needs.
E-mail is a very low cost and efficient means of communication, but it is not secure. So even if your client, as one of mine has, insists that even sensitive information be e-mailed, consider using encryption software as a safeguard. There are a number of shareware encryption programs available at little or no cost (depending on your conscience) off the internet and commercial utilities from your favorite retailer. A very simple encryption mode I use is to use the same word processor as my client (at least for this purpose), password protect the document and attach it to a simple cover e-mail. Just phone the client, communicate the password and the document can be decoded at the other end. No means of communication is absolutely secure, but at least you would not waive solicitor/client privilege(2) in respect of a document merely by the mode of communication. Encryption or password protection of the document should render the document unreadable to any internet interceptor and I would suggest satisfies a lawyer’s duty of confidentiality to the client and would also maintain privilege.