Russell L. Weaver and Steven Friedland (University of Louisville – Louis D. Brandeis School of Law and Elon University School of Law) have posted Driving While ‘Intexticated’: Texting, Driving, and Punishment (47 Tex. Tech L. Rev. 101 2014-2015) on SSRN.

Here is the abstract:

In this short article, we argue that texting while driving presents a special danger to society for which preventive solutions are needed. Although a variety of societal responses might be possible, and some other (softer) approaches should generally be preferred (e.g., education), since this is a symposium on homicide, it is appropriate to note that there will be situations when a prosecutor might justifiably (and probably should) bring murder or manslaughter charges against a driver whose texting causes a fatal accident. This article outlines the problems associated with texting, explains the legal basis on which homicide charges might be brought, and suggests some less drastic alternatives for dealing with the problem.

A new formal opinion released by California’s Committee on Professional Responsibility and Conduct cautions attorneys about their ethical duties regarding electronically stored information. “Your Honor, I am a Tech Troglodyte and don’t understand how eDiscovery works,” will no longer be a valid acceptable argument in California.

The California opinion states that attorneys should be held responsible for evaluating the need for electronic discovery on a case-by-case basis. If eDiscovery is needed or conducted by either the defendant or plaintiff, lawyers on both sides must understand how the information is stored, mined, retained, searched and deleted. If the technology or process eludes them, it’s up to the attorney to seek help from another source. (Asking your ten year-old daughter frequently may get the tech challenged lawyer going in the right direction).

“An attorney lacking the required competence for eDiscovery issues has three options: (1) acquire sufficient learning and skill before performance is required; (2) associate with or consult technical consultants or competent counsel; or (3) decline the client representation. Lack of competence in eDiscovery issues also may lead to an ethical violation of an attorney’s duty of confidentiality,” noted the opinion.