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Digital Civil Procedure

This Essay, written for a festschrift celebrating the career and contributions of Stephen Burbank, grapples with the procedural implications of the steady advance of digital legal technologies, or “legal tech,” within the civil justice system. From AI-fired tools that perform e-discovery and predict case outcomes to the migration from in-person to “virtual” proceedings accelerated by the COVID-19 pandemic, few would disagree that civil litigation in 2030 will look different than it did at the start of 2020. Proceeding from this core insight, this Essay sketches two types of procedural reckonings that lie ahead as new digital technologies move from the periphery to the center of the civil justice system. One I call traffic rules—rules that determine how and when parties are moved from in-person court proceedings to new online fora. Second are information rules that govern the availability, exchange, and use of information in a fast-digitizing litigation system that will produce more and more of it, but often in unevenly distributed ways. At least initially, and for reasons Professor Burbank has long identified, the process of adapting analog versions of these traffic and information rules to a digital world is likely to remain the province of judges, particularly trial judges operating within the considerable pools of discretion American procedure affords them. But in time, digitization will place significant pressure on American ways of procedure-making. As judges decide how much to weigh party consent in moving parties online, which machine outputs are protected work product, or which cases to push to online dispute resolution (ODR) platforms and with what algorithmic tools to inform parties about their likely prospects in court, the question will be whether judges can tailor old rules to new digital contexts or whether more sweeping changes to those rules, or even entirely new governance and oversight regimes, might be warranted. In making these decisions, judges—and, in time, rulemakers and legislators—will help chart the digital future of the civil justice system.