April 23, 2014

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My Work at CITP This Year: Judicial Policy, Public Access, and The Electronic Court

Hi. My name is Ron Hedges. I am a Visiting Research Collaborator with the CITP for 2010-11.

Let me tell you a little about myself. I am a graduate of the University of Maryland and Georgetown University Law Center. I spent over twenty years as a United States Magistrate Judge and sat in Newark, NJ. I came to the Center through my work with the use and abuse of electronic information in civil litigation in the United States Courts. Several years ago, I wrote a decision on the subjects of “preservation” and “spoliation” electronic information. That led me to The Sedona Conference, a think-tank of academics, attorneys, and judges who focus on electronic information and other things. Today, I’m on a Sedona advisory board and work on, among other things, confidentiality, public access, and electronic information in criminal actions. For information on Sedona, go to www.thesedonaconference.org.

This year, I hope to work with the Center to update something Sedona did a few years ago on confidentiality and public access in civil litigation. Our society prizes two conflicting values: openness in our judicial system and protection for matters of personal privacy and “protected” information. Examples of the latter are trade secrets and personal medical information. How we as a society reconcile openness and protection in civil litigation was the theme of The Sedona Guidelines on Confidentiality and Public Access, published in March of 2007. This document is not focused on electronic information and offers only general guidance on access to electronic information managed by courts. I hope to use my time at CITP to conduct a symposium on confidentiality and access and to move The Sedona Guidelines forward.

Another project for 2010-11 would be to consider the automation of the review of electronic information for “relevance” and “privilege.” Relevance is a simple, but often misunderstood, concept. To be relevant, information must tend to either prove – or disprove – something. Privilege is also simple, but often misunderstood. To be privileged (in a broad sense), information must be either subject to either the “attorney client privilege” or “work product.” Privileged information need not be turned over to an adversary and, if it is turned over, there can be serious consequences. Not surprisingly, human review for privilege is estimated to account for about half of the cost of litigation.

The “holy grail” of litigation is to come up with an automated process or processes for relevance and privilege review that is reasonable. The process must also be something that can be explained to laypeople (i.e., judges and lawyers). Research is being spearheaded by NIST, and I hope to have CITP sponsor a program on automated search that would feature, among others, Jason Baron of NARA and Maura Grossman of the Wachtell firm. They have led the NARA initiative and are prominent exponents of automated review.

Finally, I hope to offer a symposium or class to introduce technology-oriented folks like you to the intricacies of the law as it deals with electronic information.

Please give me your thoughts as we move toward the Fall semester.

Comments

  1. Nick Fankhauser says:

    Hi Ron- Couldn’t find a more direct way to communicate with you, so I’ll comment and invite you to contact me if you’d like to get in touch.

    We share a common interest, but I’m looking at it from the perspective of a commercial enterprise. My company works directly with many trial courts in Indiana to make information available on-line and we thus ponder the issues of access & confidentiality at length. In particular, one issue we’re wrestling with now is whether the *format* of court information affects whether it is confidential. In Indiana, we are currently prohibited from obtaining an electronic image of any public court document directly from the court and posting it on the Internet. However, we may, without breaking any rules, obtain the same document on paper from the clerk’s office scan it, and post the image. (In fact many newspapers do this every week.)

    I believe some tweaking needs to be done on the rules to remove conflicts and acknowledge that although format is transient, release of information itself is effectively permanent.

    -Nick Fankhauser, Doxpop LLC

    • Ron Hedges says:

      Interesting. Would you direct me to the Indiana rules you mention. And I hope we can discuss this further.. Please feel free to email me.

      Ron Hedges