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No to Electronic Communications in the Courts

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E-service Requirement
I read with interest the article “Move underway to require e-swapping of documents” in the February 15 News. I would like to express my concern about the proposed rules from both a historical and technological point of view.

There is no question that the advances in technology have made communication among attorneys easier. The problem is the reliability of the systems. I am not referring to the occasional downed systems or power outages. I refer to the fact that with spam filters and the like, it is not always possible to know if an e-mail has been received. This is less of an issue in litigation, because if a scheduled event has not occurred, one can always check with opposing counsel, such as when interrogatory answers are due. In fields that are not so predictable, it is often impossible to tell whether the addressee has received a document. There is simply no reliable equivalent for certified mail.

There is also an archival reason why e-mail should not entirely supplant paper. The court system does not exist as a private forum for dispute resolution. Because ours is a precedential system, even casual decisions often affect many more than the litigants before the court.

Paper and electronic systems are complementary: Each has different advantages. We know that paper lasts for at least 100 years and perhaps more. Retrieving an e-mail written in the early 1990s is an adventure. Hard drives are mechanical and fragile; other currently available storage media have similar disadvantages.

The rules allowing for a certain number of days before responses are required were not established solely because of the length of time it took to deliver mail satchels by horseback. Part of the reason was to allow counsel a sufficient time to prepare a considered, reasoned response.

It is ironic that in these days of case dockets in the thousands and trial delays of up to four years that attorneys are pushing not only for instantaneous communication, but to eliminate reliable archives.

Michael O’Kane

Written by mokane

October 13, 2013 at 11:56 am

Posted in Blogroll

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