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This discussion critiques proposed amendments to Federal Rules like Civil Rule 5.2 and Criminal Rule 49.1, highlighting concerns about privacy, accessibility, and reliability in legal technology. Issues with data transmission, digital signatures, hacking risks, electronic filing, search and seizure warrants, and privilege determinations are analyzed. The impact on rural communities, individuals with disabilities, and the potential for unauthorized changes in electronically stored information are explored. The limitations in proposed rules, the vulnerabilities to data breaches, and the challenges in protecting electronically stored information are carefully examined.
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Group 3 Against the Proposed Amendments to Fed.R.Civ.Proc., Fed.R.Crim.Proc. & Fed.R.Evid
Civil Rule 5.2 / Criminal Rule 49.1 – Privacy Protection • Institutions should collect all personal information as it is necessary for legitimate purpose • The court must be equally available to all, including access to technology. • Technology is a particular problem in rural communities, or for people with physical disabilities. – no ability to receive notices or other electric transmission s from the court. • People who don’t have the technology will not be able to access the electric filing
Civil Rule 5.2 / Criminal Rule 49.1 • Need for advanced technology to transmit the data to magistrate judge. Technology may not be reliable on one end of the transmission • Hackers can potentially access the data easier through the Internet. • Digital signatures are easily forged
Criminal Rule 5 & Rule 32.1 • Rule 5 would have been changed to require a warrant be a certified copy or an electric copy through a reliable electronic device • Does not require the court documents to be certified when they are being delivered electronically. • Does not state what a reliable electronic media is, and therefore, the transfer of such information could be subject to unauthorized changes. • -Rule 32.1 would allow for copies of court documents to be made through reliable means. This rule has the same flaws as Rule 5
Criminal Rule 41b – Search and Seizure • Authorizes a magistrate judge to issue a search and seizure warrant based on information communicated by reliable electronic means or by telephone • Allows another opportunity for hackers to change information
Civil Rule 16 • Lets a judge put limits on the scope of discovery of electronically stored information • costly & burdensome • Non integrated Systems - Information changes in one system will not affect on other system. • Therefore, problems will occur in discovery
Civil Rule 26f • Change to pre-trail meeting mentions electronically stored information • The volume of the information and the forms in which it is stored may make privilege determinations more difficult • Privilege review is correspondingly more expensive and time consuming.
Civil Rule 37f • Proposed rule 37f provides limited protection against sanctions for a parties in ability to provide electronically stored information in discovery when the information has been lost in routine operation, as long as the operation was done in good faith. • Provides no meaningful protection – protects conduct likely to be sanctioned in the first place. • Any mistake in interrupting the routine operation of a computer could be found to be unreasonable. • Foot note version too restrictive – proving a litigant acted intentionally or recklessly could prove to be quite difficult.
