September 4, 2024
Introducing the Technology and the Law Section of the DSBA
As we embark on a new year for the Delaware State Bar Association, we hope you’ll consider joining the newly rebranded Technology and the Law Section. What section is that, you may ask. We are the group formerly known as the E-Discovery and Technology Law Section.
We bet many members of the bar had no idea this section existed. We are working to change that with a rebranding of the section and a call to action to join us as we explore the impact of disruptive technology on legal issues and the practice of law. To be clear, the section will continue to provide a forum for eDiscovery issues, but our membership wanted to convey that our interests have been and are far broader than just the impact of technology on discovery. And really, at some point didn’t nearly all discovery become eDiscovery?
Our rebranding kicked off with the question of whether the section’s name was too narrow, but the need for a revamp became even more apparent as we dove into an update of our bylaws. We discovered that the bylaws had not been revised for 20 years, and that our section was still officially on the books as the Computer Law Section. Anyone who’s been practicing law during that timeframe can attest to just how much computers have changed and that computers are but one aspect of how technology has affected the practice of law.
Twenty years ago, no one had the equivalent of a personal computer in their pocket at all times. Back then, the usage of laptops was uncommon, with most attorneys still using desktop computers. Fax machines were more common than pdf files. Tablets were yet to come onto the scene; instead, Palm Pilots, Blackberries, and digital cameras were emerging. Dial-up home internet connections (using a land-based telephone line that featured a distinctive sound) were still common and not yet reliable enough to facilitate routine work-from-home arrangements.
Over the past twenty years, we moved from heavy reliance on the use of paper and the postal service to online services. As young lawyers, we faced the daily 4:30 p.m. or midnight deadlines to get our pleadings physically transported to the court clerk’s office and time-stamped to be counted among the day’s filings. We witnessed the introduction and normalization of electronic court-filing systems. In more recent years, we’ve witnessed what formerly had been in-person-only hearings in many settings transition to remote or virtual (or even hybrid) hearings, whether by teleconference or videoconference (or even both).
When the three of us started practicing law, we paid our dues in discovery, which then meant spending days in a conference room with other young lawyers reviewing boxes of paper documents (oh, the relationship bonding that experience generated!). We saw that process transition to electronic discovery as a specialty practice area with the growth of emails, text messages, digital photographs, and so many other forms of electronic communication. A whole new set of processes developed for collecting, culling, searching, sorting, and reviewing (often via out-sourcing to document-review contract attorneys) the massive troves of data implicated in the modern discovery tranches.
The proliferation of electronic communications and the tremendous amounts of data created by that expansion also fueled the rise of privacy, cybersecurity, and other data-protection laws. Whether as a consumer or a person involved in running or advising a business, none of us can escape the reach of this jurisprudence. While the law is historically slow to adapt, there’s been a steady influx of activity in this realm, rendering it a constant challenge to keep up with the patchwork landscape of laws and regulations on the local, state, national, and even international levels.
The emergence of blockchain technology and crypto assets has created new systems, markets, and opportunities for trustless peer-to-peer interactions over computer networks. These innovations have presented fascinating legal issues and caused many to consider whether blockchain systems that seek to eliminate intermediaries through technology should be subject to legacy laws and rules that seek to regulate intermediaries, and, if not, how should the use of this new technology be regulated?
Artificial intelligence has been the hot technology topic for the past year, affecting many aspects of society, including the practice of law. Generative and other forms of AI hold much potential to improve access to justice and the legal profession, but, as with any other form of technology, attorneys face ethical duties to educate themselves about AI, the risks and benefits it poses, the costs and efficiencies, and other factors as they incorporate these tools into practice.
These are all areas of interest on which our section has focused. Some of our members work on these matters in their daily practices, while others are interested in them more as an intellectual pursuit, as part of having a well-rounded foundation of knowledge. These areas of interest are constantly evolving, meaning there is never a shortage of material or a dull moment.
Our predecessors started a custom of members sharing recent legal developments at each section meeting. As a smaller section, that routine has been integral to our members getting to know each other well, having a regular forum to hone our presentation skills, and experiencing an environment for continual learning on topics that endure rapid change.
We’ve found our section to be a great resource for expanding our subject-matter knowledge, networking with other members of the bar in diverse practice areas, developing leadership and presentation skills, and gaining a better understanding of the practice of law in Delaware and beyond.
This is a section that is member-driven, open to all with an interest in technology and how it affects the practice of law. All ideas are welcome, as are attorneys from different practices and backgrounds. Our goal is for the section to reflect the diverse interests of our members and to serve as an outlet for fostering discussion and education about those interests among the greater bar association. We hope you’ll come join us as we embark on this new path for this section!
The authors are the current Chair, Vice Chair, and Secretary, respectively, of the Technology and the Law Section. Sara Beth Kohut is principal attorney at Enduraylant Law, LLC, where she focuses on data protection and business law matters. Greg Strong is a partner with Cahill Gordon & Reindel LLP, where he focuses on regulatory advice, enforcement defense, and litigation involving digital assets and other disruptive technologies. Ian McCauley is a director with Bayard, where he leads the firm’s eDiscovery practice.
This article originally appeared in the July/August 2024 issue of The Journal of the Delaware State Bar Association, a publication of the Delaware State Bar Association.
Copyright © Delaware State Bar Association 2024. All rights reserved. Reprinted with permission.
We bet many members of the bar had no idea this section existed. We are working to change that with a rebranding of the section and a call to action to join us as we explore the impact of disruptive technology on legal issues and the practice of law. To be clear, the section will continue to provide a forum for eDiscovery issues, but our membership wanted to convey that our interests have been and are far broader than just the impact of technology on discovery. And really, at some point didn’t nearly all discovery become eDiscovery?
Our rebranding kicked off with the question of whether the section’s name was too narrow, but the need for a revamp became even more apparent as we dove into an update of our bylaws. We discovered that the bylaws had not been revised for 20 years, and that our section was still officially on the books as the Computer Law Section. Anyone who’s been practicing law during that timeframe can attest to just how much computers have changed and that computers are but one aspect of how technology has affected the practice of law.
Twenty years ago, no one had the equivalent of a personal computer in their pocket at all times. Back then, the usage of laptops was uncommon, with most attorneys still using desktop computers. Fax machines were more common than pdf files. Tablets were yet to come onto the scene; instead, Palm Pilots, Blackberries, and digital cameras were emerging. Dial-up home internet connections (using a land-based telephone line that featured a distinctive sound) were still common and not yet reliable enough to facilitate routine work-from-home arrangements.
Over the past twenty years, we moved from heavy reliance on the use of paper and the postal service to online services. As young lawyers, we faced the daily 4:30 p.m. or midnight deadlines to get our pleadings physically transported to the court clerk’s office and time-stamped to be counted among the day’s filings. We witnessed the introduction and normalization of electronic court-filing systems. In more recent years, we’ve witnessed what formerly had been in-person-only hearings in many settings transition to remote or virtual (or even hybrid) hearings, whether by teleconference or videoconference (or even both).
When the three of us started practicing law, we paid our dues in discovery, which then meant spending days in a conference room with other young lawyers reviewing boxes of paper documents (oh, the relationship bonding that experience generated!). We saw that process transition to electronic discovery as a specialty practice area with the growth of emails, text messages, digital photographs, and so many other forms of electronic communication. A whole new set of processes developed for collecting, culling, searching, sorting, and reviewing (often via out-sourcing to document-review contract attorneys) the massive troves of data implicated in the modern discovery tranches.
The proliferation of electronic communications and the tremendous amounts of data created by that expansion also fueled the rise of privacy, cybersecurity, and other data-protection laws. Whether as a consumer or a person involved in running or advising a business, none of us can escape the reach of this jurisprudence. While the law is historically slow to adapt, there’s been a steady influx of activity in this realm, rendering it a constant challenge to keep up with the patchwork landscape of laws and regulations on the local, state, national, and even international levels.
The emergence of blockchain technology and crypto assets has created new systems, markets, and opportunities for trustless peer-to-peer interactions over computer networks. These innovations have presented fascinating legal issues and caused many to consider whether blockchain systems that seek to eliminate intermediaries through technology should be subject to legacy laws and rules that seek to regulate intermediaries, and, if not, how should the use of this new technology be regulated?
Artificial intelligence has been the hot technology topic for the past year, affecting many aspects of society, including the practice of law. Generative and other forms of AI hold much potential to improve access to justice and the legal profession, but, as with any other form of technology, attorneys face ethical duties to educate themselves about AI, the risks and benefits it poses, the costs and efficiencies, and other factors as they incorporate these tools into practice.
These are all areas of interest on which our section has focused. Some of our members work on these matters in their daily practices, while others are interested in them more as an intellectual pursuit, as part of having a well-rounded foundation of knowledge. These areas of interest are constantly evolving, meaning there is never a shortage of material or a dull moment.
Our predecessors started a custom of members sharing recent legal developments at each section meeting. As a smaller section, that routine has been integral to our members getting to know each other well, having a regular forum to hone our presentation skills, and experiencing an environment for continual learning on topics that endure rapid change.
We’ve found our section to be a great resource for expanding our subject-matter knowledge, networking with other members of the bar in diverse practice areas, developing leadership and presentation skills, and gaining a better understanding of the practice of law in Delaware and beyond.
This is a section that is member-driven, open to all with an interest in technology and how it affects the practice of law. All ideas are welcome, as are attorneys from different practices and backgrounds. Our goal is for the section to reflect the diverse interests of our members and to serve as an outlet for fostering discussion and education about those interests among the greater bar association. We hope you’ll come join us as we embark on this new path for this section!
The authors are the current Chair, Vice Chair, and Secretary, respectively, of the Technology and the Law Section. Sara Beth Kohut is principal attorney at Enduraylant Law, LLC, where she focuses on data protection and business law matters. Greg Strong is a partner with Cahill Gordon & Reindel LLP, where he focuses on regulatory advice, enforcement defense, and litigation involving digital assets and other disruptive technologies. Ian McCauley is a director with Bayard, where he leads the firm’s eDiscovery practice.
This article originally appeared in the July/August 2024 issue of The Journal of the Delaware State Bar Association, a publication of the Delaware State Bar Association.
Copyright © Delaware State Bar Association 2024. All rights reserved. Reprinted with permission.