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
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
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.
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 firstname.lastname@example.org.
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