Google Docs Ready for (Legal) Primetime?

Today's predominant word processors are Microsoft Word and Corel WordPerfect. MS Word is also offered as a web-based application or Saas (Software-as-a-Service).  However, there is a newer type of document collaboration, where numerous people have access to the same document so that they can all contribute and monitor changes made by others.  These types of applications are becoming more common.  For example, Google has begun to offer its own Google Word Processor called "Google Docs" -- which allows users to share and collaborate on documents. 

What does it matter which type you use in your business?  Here's one comparison between the Google and Microsoft web products.  But there's much more when it comes to the battle between WORD v. GOOGLE DOCS.

Sass and Microsoft Word.  SaaS, which Word uses, is really a form of cloud computing, or internet-based computing. Applications such as a word processor is accessed via the Internet, and the resulting data created by the user (documents) is stored on servers managed by particular service providers. This form of service delivery has a siginificant advantage over "localized" computing from a cost and management standpoint.  For example:

  • By paying a SaaS provider to run applications and store documents, businesses no longer have the need to purchase/upgrade their word processing software.
  • It reduces and/or allows the redeployment of hardware (servers) used to store documents.
  • Applications can be accessed anywhere, anytime as long as the user has Internet access.
  • For remote users, an iPhone, iPad, Blackberry, or other Android-powered phones can be used to access documents, and there is no need to login to an internal network using software such as Citrix or any flavors of VDI.
  • SaaS providers typically guarantee 24/7 access due to elaborate network redunduncies.
  • Fewer or no technical staff is needed to manage software and handle storage issues.  This frees them up for other tasks.

Google DocsDepending on your perspective, Google Docs could be a blessing or a curse. Documents created by Google Docs are devoid of metadata. This means that no document scrubbing (e.g., iScrub) is needed before they're being sent to a recipient. There is no chance of inadvertently disclosing confidential information.  Additionally, numerous people can be in the document at one time, make changes, and monitor the changes others are making.  This can work wonders for collaboration.  Unfortunately, there are some down sides for Google Docs:

  • Google Docs tracks all document edits in the form of a "revision history" trail that cannot be eliminated by the user. This same trail could potentially be subpoenaed by the courts for e-discovery purposes.  Google Docs, and Gmail, stores everything. 
  • Google Docs exists as an independent product from Document Management Systems (DMS). As a result, it cannot be integrated with an in-house DMS or part of a company's overall enterprise content management (ECM) strategy.  In other words, you can't develop a record retention policy that can be followed with these documents. 
  • The document versioning method is quite different. For example, a particular MS Word document in a DMS such as iManage will present itself as "document_number.1" and a new version is saved as "document_number.2". The same document created in Google Docs will present itself as two separate entries in the "revision history". Hence, a Google Docs document would be saved as "document_name" and a new version would be saved as a separate document but renamed as "document_name_revised".  As a result, there is no easy way to move all the separate entries into a DMS as a single document with different versions.

Google Docs may be more appealing to smaller businesses that do not want to worry about internal networks and in-house DMS issues.  But large or small, whether Google Docs is a feasible solution depends on your business infrastructure, records compliance requirements, and the resources available to manage it.  Before taking the plunge, consult with Google, your legal department, and perhaps your existing e-discovery vendor on how Google handles litigation holds and document search and retrieval in e-discovery situations.

Regardless of its short-comings, Google Docs could be a solution for certain businesses that don't require a DMS and the main focus is document collaboration without overburdening the IT staff.

Googling and Tweeting and Facebooking, Oh My! Jurors Conducting Outside Research During Trial

The Internet and sites such as Twitter offer many opportunities to create more transparency in the justice system, beyond reporting by the mainstream media.  The University of Montana's blog / tweet project on the W.R. Grace trial is just one intriguing current example.  More on that fascinating endeavor here

But the increasing mobility of Internet access has other unintended consequences that cross into the E-Discovery arena.  The New York Times online posted a fascinating article  (note:  New York Times login required)highlighting the sharp increase in the number of jurors who violate the court's routine admonition not to conduct any outside research on the case.  A growing number of jurors are conducting Internet searches on their BlackBerrys or iPhones or sending "tweets" or blogging about the trial via the Internet - sometimes even while they are hearing evidence at trial.

This juror misconduct ranges from a juror "Googling" information regarding factual issues in the case, to a juror who posted periodic updates on the conduct of the trial to Twitter and Facebook.  And it's not just an isolated phenomenon.  In one case the New York Times article discusses, a juror in a federal criminal prosecution admitted that he had conducted outside research on the Internet.  Thinking this an aberration, and an issue that could be resolved simply by removing the offending juror from the jury, the trial judge questioned the other jurors on the panel.  Turns out eight other jurors had been doing the same thing!  The court had no other option but to declare a mistrial.

Trial judges have routinely instructed jurors for years not to conduct outside research.  And, in the past several years, judges have modified those instructions to include admonitions not to conduct any research via the Internet.  Nonetheless, the number of jurors violating those instructions - and causing mistrials or ripe issues for appeal - has grown as the ease and means of accessing information have grown.

Why is it a problem?  Let jurors do outside research and you might as well throw the Constitution and the Rules of Evidence out the window.  The exclusionary rule would have no meaning if jurors could just Google newspaper accounts of the investigation and perhaps even key documents, or read the notoriously easily manipulated articles on Wikipedia.

What is a trial lawyer to do?   We certainly don't want all juries sequestered, with their iPhones, BlackBerrys and laptops locked away in the custody of the court, for the duration of trial.  Some less-drastic alternatives:

  • Ask the trial judge to expand her boilerplate admonition to incorporate an explicit explanation of the policies behind the rule and the consequences of violating the rule.  Be prepared with your own draft admonition and submit it with your jury instructions. 
  • To the extent that the judge or your jurisdiction permits you to do so, use voir dire to (1) educate the panel regarding why they shouldn't do outside research, including Internet research, and (2) enlist the jurors in helping the court enforce that restriction. 
  • In Arizona, where I currently practice, jurors can submit questions to be asked of a given witness.  Sometimes those questions may clue you in that jurors are doing improper outside research.  Be alert to the possibility, and be prepared to ask the court to inquire.
  • Bone up on your e-discovery law, and be prepared to subpoena text message records, laptop hard drives and other ESI if you suspect juror misconduct created an appealable issue.

Finally, don't ignore the upsides and opportunities our wired age provides the diligent litigator.  As the NYT article notes, many trial attorneys now conduct their own Internet research on prospective jurors.  Look at those Facebook and MySpace pages.  Read those blogs, tweets, and websites.