Technology Thought Leaders on the Bench

Written by Nadine Weiskopf, Director Product Management at LexisNexis

A slow but steady movement has been gaining ground in our judicial system as technology is embraced more and more by members of the bench.  Judges are attending technology conferences, finding ways to leverage technology in their courtroom, and utilizing blogs and social media.

Some Judges have moved beyond simply embracing technology and have demonstrated their role as thought leaders in the space. 

Magistrate Judge Andrew Peck of the Southern District of New York is well known for his thought leadership in the e-discovery space.  He sits on speaking panels at LegalTech New York, authors articles and is versed on e-discovery, both nationally and world-wide.  He is deeply knowledgeable on the plethora of arising technologies in the space, which he demonstrated in Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012) [enhanced version available to lexis.com subscribers]. See also Magistrate Judge Peck's Judicial Approval of a Predictive Coding Protocol, 2012 Emerging Issues 6329. In an effort to open the door to new technologies, Judge Peck issued a groundbreaking order, accepting the use of predictive coding to reduce the massive amount of data that would have cost an estimated $1 million to review manually.  Judge Peck's Order demonstrates his unusually deep search knowledge, especially when he analyzes and compares the effectiveness of different search methods and compares traditional manual review versus predictive coding.

U.S. District Judge William Alsup demonstrated over the last few months that at age 67, he has the ability to both master and become a thought leader in even the most complicated questions of technology.  Judge Alsup presided over Oracle v Google, 2012 U.S. Dist. LEXIS 75896 (N.D. Cal. May 31, 2012) [enhanced version available to lexis.com subscribers], and his deep analysis of copyright law and its application to Java APIs is undeniably ground-breaking. 

In the case, Oracle sought over $1 billion dollars from Google, claiming it had infringed 37 Java APIs in its Android Platform.  Judge Peck disagreed, finding that the APIs did not fall under U.S. copyright law.  Going above and beyond, Judge Alsep took it upon himself to become an expert in Java coding.  Judge Alsup, who was already capable of programming in other languages, leveraged his deep coding knowledge several times throughout the trial, demonstrating that he can be as much of an expert in technology as he is in law.  Judge Alsup's 47 page order also goes far beyond the average legal ruling, including detailed descriptions and analysis of the nature of the technology questions at issue.  This is demonstrated in his Summary of Ruling, where he states:

But the names are more than just names - they are symbols in a command structure wherein the commands take the form

java.package.Class.method()

Each command calls into action a pre-assigned function. The overall name tree, of course, has creative elements but it is also a precise command structure - a utilitarian and functional set of symbols, each to carry out a pre-assigned function. This command structure is a system or method of operation under Section 102(b) of the Copyright Act and, therefore, cannot be copyrighted. Duplication of the command structure is necessary for interoperability.1

Thought leaders always face controversy - it is par for the course when breaking new ground.  Oracle will undeniably appeal Judge Alsup's decision, and Judge Peck's recusal was sought and lost by plaintiff's counsel.  Nonetheless, both of these judges have persevered, leading the way for other members of the bench to make difficult calls in a complicated and ever changing world of technology.

Technology in the courtroom is inevitable.  This year, we have seen a continuous trend of courts becoming comfortable with, and even recommending, advanced technology in litigation: Da Silva Moore v Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y Feb. 24, 2012) [enhanced version available to lexis.com subscribers] (recommending parties utilize advanced technologies during discovery); TJS of New York, Inc. v. New York State Dep't of Taxation and Fin., 932 N.Y.S.2d 243 (N.Y. App. Div. Nov. 3, 2011) [enhanced version available to lexis.com subscribers] (defining software programs as records subject to production). Moreover, the Federal Judicial Center provides a guide for using technology in the courtroom - Effective Use of Courtroom Technology: A Judge's Guide to Pretrial and Trial.  Staying abreast of technology is even more critical today than it was only five years ago.

In June 2012, LexisNexis acquired Sanction Solutions, one of the most trusted and recognized brands in the litigation technology market. Sanction software provides litigators a single resource to quickly assemble documents, exhibits, transcripts, questions, visuals and video that will be used to present evidence throughout litigation. The addition of litigation presentation software to our product portfolio creates an unmatched set of integrated, end-to-end solutions for litigators. These solutions from LexisNexis - spanning early data assessment, e-discovery processing and review, case analysis and now extending to trial presentation - also demonstrates our commitment to leading the way in the use of technology in the courtroom.

About the Author:

Nadine Weiskopf is director of product management at LexisNexis, where she is responsible for developing and executing strategic plans for various service and software lines. Prior to joining LexisNexis in 2006, she was a litigator for 8 years in Washington and California. Weiskopf earned her law degree from the Seattle University School of Law and her undergraduate degree from the University of Washington. She can be contacted at nadine.weiskopf@lexisnexis.com.


1. Oracle vs Google, United States District Court for the Northern District of California, Case No. C-10-03561 WHA, ORDER RE COPYRIGHTABILITY OF CERTAIN REPLICATED ELEMENTS OF THE JAVA APPLICATION PROGRAMMING INTERFACE, May 31, 2012