Online Search and the Law

Whether keeping up with the competition, watching for trends in one's field of business, investigating day-to-day business opportunities or acquisitions, or looking for online infringement, an Internet search remains most firms' starting point. While all of these searches, of course, should have been conducted before the arrival of the Internet, the emergence of Google's search algorithm made them all much easier, cheaper, and more convenient and efficient than methods in use historically; and certainly more efficiently and less expensively, in terms of time and dollars, than the search engines available pre-Google.

Of course, a potent benefit of technology in the Information Age is that business searching today isn't limited to Google ' many other good search options are available, from general sites such as Bing (www.bing.com) to specialized ones such as Wolfram Alpha (www.wolframalpha.com) to the “file search” at Find Files (www.findfiles.net). (Online search research firm Search Engine Watch compiles a list of the “major” search engines at http://bit.ly/xymicU.)

How Long, How Often?

But knowing where to search does not answer two critical questions about the nuts and bolts of business search:

1. How long do I have to search online for an answer before I can “safely” give up?
2. In a world where content changes by the second, how frequently do I have an obligation to update my results with a new search (and, as a critically important subtext, how vigilant must I be in watching online sources for developments relevant to my business)?

The answers to each of these questions will depend on the importance of the underlying subject matter and the size of the business.

Content

For example, a firm that generates all its revenue from licensing content, such as a seller of copyrighted images or media content, has a great financial incentive to monitor online broadly and frequently, in proportion to its revenue. Once infringing content becomes freely available, it can spread quickly and virally, which can very quickly and very likely mean that potential customers may have access to it free of the owner's licensing fee ' unless the owner acts promptly to shut down the infringing use. In contrast, a seller of standardized products from a “brochure ware” website may have little need to keep track of competitors' websites, because the marketplace will tell him almost instantly if other sellers, online or off, offer the same products at a better price or with improvements.

The Size of the Deal

Similarly, acquisition diligence on a multi-billion dollar deal matters more than it may in a transaction involving only thousands of dollars. However, size alone should not be the lone factor in determining how much diligence should be done. Buying a small company that has an undisclosed infringement liability or, even worse, whose products are about to become obsolete because of products newly available in the marketplace, could lead to damages or expenses far out of proportion to the size of the deal. For a small buyer, a moderate deal may mean such a big commitment ' and risk ' that it warrants an extremely thorough, and ongoing, search.

'Just Knowing'

Similarly, in our e-business context, are there facts that your business should be charged with knowledge of, just because they are available online? Using my example of online content infringement, consider: Should the fact that the infringing materials could have been located had you searched diligently put your firm at risk of a laches defense when you do find the violator, and then take legal action against it?

Judicial Notice

For different approaches to answering these questions about when and how much research one must conduct, let's begin by considering the analogous legal question of “judicial notice.” For many years, courts have accepted that information need not be proven, “if (it) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Federal Rule of Evidence 201. Online sources phrase the rule as “allow(ing) a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it cannot be refuted.”

Not surprisingly, courts have often limited use of online information generally in judicial notice, depending on the source of the information (see, generally, “A Tangled Web? The Developing Law of Judicial Notice of Website Information,” New Hampshire Bar Journal, Spring, 2009, http://bit.ly/yGjCeQ; “Should the Ease of Finding Information Online Lower a Court's Standard of Proof?” Law and Informatics Institute, http://bit.ly/xiEb0m, and “Internet Evidence,” Federal Evidence Review, http://bit.ly/zQut6L). Apart from court and government sites, information as objectively accurate as a map has been accepted. For example, a recent federal court case in the Eastern District of New York “took judicial notice of distance by use of Google Maps, because “[c]ourts commonly use [I]nternet mapping tools to take judicial notice of distance and geography” (see, Sessa v. U.S., (E.D. NY 2011) at footnote 12 (http://bit.ly/xoRaj5)).

While public records are presumably the same online as on paper, information on privately maintained websites may not be presumed free of bias, or at least presumed accurate. As a result, many types of information that an individual may be willing to rely on (or that a businessperson may be willing to risk making a decision on) may not satisfy a court's scrutiny, e.g., citations to Wikipedia (see, “No Judicial Notice for Wikipedia Entry,” Internet Cases, http://bit.ly/yGHW1o). Similarly, courts have been skeptical about the unilateral use of information available online, without the opportunity for both sides to question it through traditional methods. As one recent federal appellate court noted: “[G]iven that the Internet contains an unlimited supply of information with varying degrees of reliability, permanence, and accessibility, it is especially important for parties to have the opportunity to be heard prior to the taking of judicial notice of websites.” Pickett v. Sheridan Health Care Center, No. 11-2146 (7th Cir. Dec. 15, 2011) (http://bit.ly/xYlsyT).

Courts Recognize the Internet ' To an Extent

Despite these procedural concerns, however, the fact is that looking online for relevant information has become not only acceptable to courts, but required ' within limits. One online writer has even noted: “The use of online sources as the basis for judicial notice will surely grow over time. I am not suggesting that we stop this growing practice, only that the courts take caution in what they decide is 'not subject to reasonable dispute,' because too often material from the Internet is posted with little to no editorial oversight. The Information Age has certainly made information easier to find, and the challenge now is to make sure the courts maintain high standards as they decide what deserves judicial notice and what deserves to be relegated to the gossip pages” (see, “Should the Ease of Finding Information Online Lower a Court's Standard of Proof?,” above). The Second Circuit recently acknowledged that it would not reverse a decision made on the basis of a judge using Internet resources to “confirm a hunch.” U.S. v. Bari, No. 09-1074-cr (2nd Cir. 2010) (http://bit.ly/yoRUou).

Diligence Required Online

Perhaps the lesson from the developing case law of judicial notice and the Internet for our business question of how much search is required, therefore, is that some online diligence must be performed: Ignorance of available information from want of searching can be fatal to a case (should the matter lead to litigation), even if the precise amount of search will vary from case-to-case. As celebrated Judge Posner admonished during a practitioners' conference in his circuit several years ago: “Google the case before completing your brief, because if you don't, the judge might.” See, “Judicial Notice and Internet Searches,” Stubborn Facts, http://bit.ly/xACtY0. At the same conference, speakers noted that a similar example occurred when “the panel opinion expressed frustration that the parties had failed to include a 'satellite photo (available free of charge from Google) ' in evidence '. The panel simply looked up this information for themselves.”

Consider that the universe of where to search will always expand, as rapidly as technology develops. Yesterday's website information has become today's iPhone video posted on YouTube ' and there is no reason to think that the same questions of credibility, reliability, due process and cross examination won't arise for texts, Tweets and whatever other new forms of evidence of communications are created. From our e-commerce perspective, therefore, when one must search for relevant information, the scope ' and expense ' of search will constantly expand with the availability of technology.

Transience and Archives

Search also has temporal limits; for example, a typical search is limited to what may be available that day. But what if you thoroughly search what is available online today, and find nothing of relevance? Does that satisfy whatever legal burden you may have? Perhaps not, because the Internet also permits time travel, via the “Wayback Machine,” at www.ar chive.org. The site makes available stored versions of websites as they appeared in the past, a tactic that could be used through the practice of judicial notice.

Not surprisingly, litigators have sought to use those resources so much that the site's operators have posted a plea to those seeking to prove a prior version of a website: “Please consider alternatives to an affidavit from the Internet Archive. Judicial notice and stipulation to a document's authenticity are two typical and straightforward options that might be used instead of an affidavit. Since our resources are limited, we urge you to pursue these alternatives before coming to us with authentication requests” (www.archive.org/legal/faq.php).

However, the site's sponsors warn that what is available on its site provides no proof of what actually was (or was not) posted on any given date. They say: “The fact that a URL from a particular date is not accessible via the Wayback Machine only means that the page is not archived in the Wayback Machine. It does not mean that the page did or did not exist on that date. The Wayback Machine does not contain copies of every page that ever existed on the Internet.”

More important, use or “authentication” of materials from the site does not automatically satisfy the requirements of the rules of evidence: “The Internet Archive's affidavit only affirms that the printed document is a true and correct copy of our records. It remains your burden to convince the finder of fact what pages were up when.” (The FAQ section at archive.org contains many other warnings that must be read and understood by anyone seeking to rely on a Wayback Machine page as evidence.)

Searches: Required

Nonetheless, if your business needs to include a search of what may be available online, the opportunity to check what may have once been there (but is no longer online), such as for a damages claim of infringement of intellectual property, the opportunity to peek into the past should not be passed up. Even if what you find may have limited usefulness for some evidentiary purposes, it may lead you to other information that can be used, formally or informally.

The Obligation to Search

Another aspect of the “how much to search” inquiry is one's professional obligation to search, whether as an attorney on behalf of a client, or as part of the duties of an e-commerce firm's employee to investigate a potential deal. This question can arise in many contexts:

• Despite the perception that one can always look a bit more, and find something else, online that will be relevant to a business question, at some point a business must act and move to proceed ' the Internet has simply heightened the risk of “paralysis by analysis.” As Voltaire said long before the creation of the Internet: “The perfect is the enemy of the good” (even if that is only a law of common sense and good business).
• Much like the ongoing questions of how to apply traditional wage and hour rules to persons working remotely and/or electronically, search work often is never complete because a person often doesn't know when she has found what is being sought ' until the information is found. Some companies in traditional industries even shut off their communications systems at certain hours to force employees to take time off, but that typically European solution would not likely be acceptable to the typical driven e-commerce entrepreneur.
• A related question in the modern workplace is how often employees should be required to check e-mail ' particularly if they work with foreign firms, whose workday may overlap with the middle of the U.S. night ( see, “Lawsuits Question After-Hours Demands of E-mail and Cellphones,” The Wall Street Journal, http://on.wsj.com/w8aBV2). (When I read that “48% of employees are required to read and respond to e-mail when they are away from work,” my first reaction is wondering how the questioner got the other 52% to lie consistently about how often they check messages.) ( See also, the statistics on employees' addiction to online communication to understand the potential financial risks of this problem if employers actually had to pay for all the hours during which employees' attention is diverted to work matters, at “Taming the Beast: Managing Client Expectations in a 24/7 World, ” ABA's GPSolo Technology & Practice Guide, http://bit.ly/zI4bun.)
• Questions of how much to search are closely tied to questions of expectations. If e-commerce managers expect more from employees or counsel than they can (or are legally required) to provide, then disappointment and, inevitably, litigation will arise ' unless everyone acknowledges that the purposes of searching can't always be equated to building a widget. In other words, paying an attorney (or other professional), or hiring an e-commerce executive, is not the same as purchasing an insurance policy against an intellectual-property infringement claim, or finding that another firm has already developed the product or service you plan to sell, or picked a name similar to the one you have in mind ( see, “ Taming the Beast,” above).
• With all communications occurring instantly and with high priority, firms may want to consider “bypass” mechanisms, i.e., procedures by which truly important messages can be highlighted for key executives to pick out of the normal clutter. In fact, in such cases perhaps a truly ancient technology may be necessary ' the combination of the telephone and the human voice.
• e-Commerce questions may also mask underlying generational differences ( see, “Technology and the Intergenerational Law Firm,” American Association for Justice, http://bit.ly/z4Q7oj.). The business expectations of clients who cannot do business without constantly checking Facebook or Twitter, and who type their own responses in their portable device, may be thoroughly foreign to those who rely on their secretary to get out a Federal Express communication or other delivery, or a fax, by the end of the day. What may seem like a lack of competence to an e-commerce client may be nothing more than differing expectations. But if the e-commerce client allows that perceived difference to cause her firm to lose the skills and experience of counsel who has been through the business and legal challenges of past eras of technological change, then she will have done her business and its investors a grave disservice. While one can always hire an engineer or programmer or marketer with the latest skills (or train a proven employee), the benefit of sound advice, based on having seen similar challenges in many other clients, at similar growth stages, combined with the wisdom of how to apply those lessons to the current situation, is much harder to acquire.

The New Model: Much Like the Old

It is important to note that although the ethical and practice questions discussed in this article arose in the context of the constant pressures that bear down daily on attorneys in connection with the search needs of an e-commerce firm. None is, in fact, purely an Internet or search question. With slight changes in terminology, all of these challenges could have been presented in cutting-edge businesses and their service providers at any time of technological change.

The e-challenge for lawyers and clients, therefore, is not in working longer hours, or working harder at research tasks, but to be sharper and better prepared to succeed at what their counterparts may have faced at similar junctures in our economy. Were the questions and pressures (even if self-imposed) arising after the introduction of electronic financial information services, or the availability of Lexis and Westlaw, any different than those faced by today's e-commerce counsel?

Instead, the challenge posed by the search questions I have discussed is simply that faced by any attorney, whether in e-commerce or a traditional field: How to best serve a client, especially when the law or the client's business model, or the client's marketplace (or even all three), are in flux. That is not a task for the newly minted law graduate, even if she may be more conversant with the changing technology than other attorneys are. No, the skills to succeed in this situation are ones developed through experience helping clients through struggles, and through changes in their business and competition. The skills of good e-lawyering are just the skills of good lawyering, period.

Conclusion

So let me close with my answer to the questions I posed at the start of the article:

• How long do I have to search online for an answer, before I can “safely” give up?
• In a world where content changes by the second, how frequently do I have an obligation to update my results with a new search?
• How vigilant must I be in watching online sources for developments relevant to my business?

I have one answer to all these questions: A good lawyer will always pursue a client's question, be it business or legal, until a satisfactory resolution has been achieved. But because “satisfactory” implies a balance between cost and speed to achieve an accurate answer, the result will be different for each client and for each question.

Although U2's Bono praised the virtues of a constant search for the object of his desire in song, anyone looking online for needed business information certainly won't find that quest quite as romantic, or enjoy spending time and money for the privilege.

Today, few people can conduct business, whether online or in the physical world, without using the Internet for some search functions. Although 20/20 hindsight is easy, the growth of Google (and the search business in general) is not surprising, in retrospect, given how it satisfied a need that all businesses have always had: a more efficient and less expensive way to obtain information than the other options available before it existed, whether online or in traditional libraries.

The Internet, of Course

Whether keeping up with the competition, watching for trends in one's field of business, investigating day-to-day business opportunities or acquisitions, or looking for online infringement, an Internet search remains most firms' starting point. While all of these searches, of course, should have been conducted before the arrival of the Internet, the emergence of Google's search algorithm made them all much easier, cheaper, and more convenient and efficient than methods in use historically; and certainly more efficiently and less expensively, in terms of time and dollars, than the search engines available pre-Google.

Of course, a potent benefit of technology in the Information Age is that business searching today isn't limited to Google ' many other good search options are available, from general sites such as Bing (www.bing.com) to specialized ones such as Wolfram Alpha (www.wolframalpha.com) to the “file search” at Find Files (www.findfiles.net). (Online search research firm Search Engine Watch compiles a list of the “major” search engines at http://bit.ly/xymicU.)

How Long, How Often?

But knowing where to search does not answer two critical questions about the nuts and bolts of business search:

1. How long do I have to search online for an answer before I can “safely” give up?
2. In a world where content changes by the second, how frequently do I have an obligation to update my results with a new search (and, as a critically important subtext, how vigilant must I be in watching online sources for developments relevant to my business)?

The answers to each of these questions will depend on the importance of the underlying subject matter and the size of the business.

Content

For example, a firm that generates all its revenue from licensing content, such as a seller of copyrighted images or media content, has a great financial incentive to monitor online broadly and frequently, in proportion to its revenue. Once infringing content becomes freely available, it can spread quickly and virally, which can very quickly and very likely mean that potential customers may have access to it free of the owner's licensing fee ' unless the owner acts promptly to shut down the infringing use. In contrast, a seller of standardized products from a “brochure ware” website may have little need to keep track of competitors' websites, because the marketplace will tell him almost instantly if other sellers, online or off, offer the same products at a better price or with improvements.

The Size of the Deal

Similarly, acquisition diligence on a multi-billion dollar deal matters more than it may in a transaction involving only thousands of dollars. However, size alone should not be the lone factor in determining how much diligence should be done. Buying a small company that has an undisclosed infringement liability or, even worse, whose products are about to become obsolete because of products newly available in the marketplace, could lead to damages or expenses far out of proportion to the size of the deal. For a small buyer, a moderate deal may mean such a big commitment ' and risk ' that it warrants an extremely thorough, and ongoing, search.

'Just Knowing'

Similarly, in our e-business context, are there facts that your business should be charged with knowledge of, just because they are available online? Using my example of online content infringement, consider: Should the fact that the infringing materials could have been located had you searched diligently put your firm at risk of a laches defense when you do find the violator, and then take legal action against it?

Judicial Notice

For different approaches to answering these questions about when and how much research one must conduct, let's begin by considering the analogous legal question of “judicial notice.” For many years, courts have accepted that information need not be proven, “if (it) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Federal Rule of Evidence 201. Online sources phrase the rule as “allow(ing) a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it cannot be refuted.”

Not surprisingly, courts have often limited use of online information generally in judicial notice, depending on the source of the information (see, generally, “A Tangled Web? The Developing Law of Judicial Notice of Website Information,” New Hampshire Bar Journal, Spring, 2009, http://bit.ly/yGjCeQ; “Should the Ease of Finding Information Online Lower a Court's Standard of Proof?” Law and Informatics Institute, http://bit.ly/xiEb0m, and “Internet Evidence,” Federal Evidence Review, http://bit.ly/zQut6L). Apart from court and government sites, information as objectively accurate as a map has been accepted. For example, a recent federal court case in the Eastern District of New York “took judicial notice of distance by use of Google Maps, because “[c]ourts commonly use [I]nternet mapping tools to take judicial notice of distance and geography” (see, Sessa v. U.S., (E.D. NY 2011) at footnote 12 (http://bit.ly/xoRaj5)).

While public records are presumably the same online as on paper, information on privately maintained websites may not be presumed free of bias, or at least presumed accurate. As a result, many types of information that an individual may be willing to rely on (or that a businessperson may be willing to risk making a decision on) may not satisfy a court's scrutiny, e.g., citations to Wikipedia (see, “No Judicial Notice for Wikipedia Entry,” Internet Cases, http://bit.ly/yGHW1o). Similarly, courts have been skeptical about the unilateral use of information available online, without the opportunity for both sides to question it through traditional methods. As one recent federal appellate court noted: “[G]iven that the Internet contains an unlimited supply of information with varying degrees of reliability, permanence, and accessibility, it is especially important for parties to have the opportunity to be heard prior to the taking of judicial notice of websites.” Pickett v. Sheridan Health Care Center, No. 11-2146 (7th Cir. Dec. 15, 2011) (http://bit.ly/xYlsyT).

Courts Recognize the Internet ' To an Extent

Despite these procedural concerns, however, the fact is that looking online for relevant information has become not only acceptable to courts, but required ' within limits. One online writer has even noted: “The use of online sources as the basis for judicial notice will surely grow over time. I am not suggesting that we stop this growing practice, only that the courts take caution in what they decide is 'not subject to reasonable dispute,' because too often material from the Internet is posted with little to no editorial oversight. The Information Age has certainly made information easier to find, and the challenge now is to make sure the courts maintain high standards as they decide what deserves judicial notice and what deserves to be relegated to the gossip pages” (see, “Should the Ease of Finding Information Online Lower a Court's Standard of Proof?,” above). The Second Circuit recently acknowledged that it would not reverse a decision made on the basis of a judge using Internet resources to “confirm a hunch.” U.S. v. Bari, No. 09-1074-cr (2nd Cir. 2010) (http://bit.ly/yoRUou).

Diligence Required Online

Perhaps the lesson from the developing case law of judicial notice and the Internet for our business question of how much search is required, therefore, is that some online diligence must be performed: Ignorance of available information from want of searching can be fatal to a case (should the matter lead to litigation), even if the precise amount of search will vary from case-to-case. As celebrated Judge Posner admonished during a practitioners' conference in his circuit several years ago: “Google the case before completing your brief, because if you don't, the judge might.” See, “Judicial Notice and Internet Searches,” Stubborn Facts, http://bit.ly/xACtY0. At the same conference, speakers noted that a similar example occurred when “the panel opinion expressed frustration that the parties had failed to include a 'satellite photo (available free of charge from Google) ' in evidence '. The panel simply looked up this information for themselves.”

Consider that the universe of where to search will always expand, as rapidly as technology develops. Yesterday's website information has become today's iPhone video posted on YouTube ' and there is no reason to think that the same questions of credibility, reliability, due process and cross examination won't arise for texts, Tweets and whatever other new forms of evidence of communications are created. From our e-commerce perspective, therefore, when one must search for relevant information, the scope ' and expense ' of search will constantly expand with the availability of technology.

Transience and Archives

Search also has temporal limits; for example, a typical search is limited to what may be available that day. But what if you thoroughly search what is available online today, and find nothing of relevance? Does that satisfy whatever legal burden you may have? Perhaps not, because the Internet also permits time travel, via the “Wayback Machine,” at www.ar chive.org. The site makes available stored versions of websites as they appeared in the past, a tactic that could be used through the practice of judicial notice.

Not surprisingly, litigators have sought to use those resources so much that the site's operators have posted a plea to those seeking to prove a prior version of a website: “Please consider alternatives to an affidavit from the Internet Archive. Judicial notice and stipulation to a document's authenticity are two typical and straightforward options that might be used instead of an affidavit. Since our resources are limited, we urge you to pursue these alternatives before coming to us with authentication requests” (www.archive.org/legal/faq.php).

However, the site's sponsors warn that what is available on its site provides no proof of what actually was (or was not) posted on any given date. They say: “The fact that a URL from a particular date is not accessible via the Wayback Machine only means that the page is not archived in the Wayback Machine. It does not mean that the page did or did not exist on that date. The Wayback Machine does not contain copies of every page that ever existed on the Internet.”

More important, use or “authentication” of materials from the site does not automatically satisfy the requirements of the rules of evidence: “The Internet Archive's affidavit only affirms that the printed document is a true and correct copy of our records. It remains your burden to convince the finder of fact what pages were up when.” (The FAQ section at archive.org contains many other warnings that must be read and understood by anyone seeking to rely on a Wayback Machine page as evidence.)

Searches: Required

Nonetheless, if your business needs to include a search of what may be available online, the opportunity to check what may have once been there (but is no longer online), such as for a damages claim of infringement of intellectual property, the opportunity to peek into the past should not be passed up. Even if what you find may have limited usefulness for some evidentiary purposes, it may lead you to other information that can be used, formally or informally.

The Obligation to Search

Another aspect of the “how much to search” inquiry is one's professional obligation to search, whether as an attorney on behalf of a client, or as part of the duties of an e-commerce firm's employee to investigate a potential deal. This question can arise in many contexts:

• Despite the perception that one can always look a bit more, and find something else, online that will be relevant to a business question, at some point a business must act and move to proceed ' the Internet has simply heightened the risk of “paralysis by analysis.” As Voltaire said long before the creation of the Internet: “The perfect is the enemy of the good” (even if that is only a law of common sense and good business).
• Much like the ongoing questions of how to apply traditional wage and hour rules to persons working remotely and/or electronically, search work often is never complete because a person often doesn't know when she has found what is being sought ' until the information is found. Some companies in traditional industries even shut off their communications systems at certain hours to force employees to take time off, but that typically European solution would not likely be acceptable to the typical driven e-commerce entrepreneur.
• A related question in the modern workplace is how often employees should be required to check e-mail ' particularly if they work with foreign firms, whose workday may overlap with the middle of the U.S. night ( see, “Lawsuits Question After-Hours Demands of E-mail and Cellphones,” The Wall Street Journal, http://on.wsj.com/w8aBV2). (When I read that “48% of employees are required to read and respond to e-mail when they are away from work,” my first reaction is wondering how the questioner got the other 52% to lie consistently about how often they check messages.) ( See also, the statistics on employees' addiction to online communication to understand the potential financial risks of this problem if employers actually had to pay for all the hours during which employees' attention is diverted to work matters, at “Taming the Beast: Managing Client Expectations in a 24/7 World, ” ABA's GPSolo Technology & Practice Guide, http://bit.ly/zI4bun.)
• Questions of how much to search are closely tied to questions of expectations. If e-commerce managers expect more from employees or counsel than they can (or are legally required) to provide, then disappointment and, inevitably, litigation will arise ' unless everyone acknowledges that the purposes of searching can't always be equated to building a widget. In other words, paying an attorney (or other professional), or hiring an e-commerce executive, is not the same as purchasing an insurance policy against an intellectual-property infringement claim, or finding that another firm has already developed the product or service you plan to sell, or picked a name similar to the one you have in mind ( see, “ Taming the Beast,” above).
• With all communications occurring instantly and with high priority, firms may want to consider “bypass” mechanisms, i.e., procedures by which truly important messages can be highlighted for key executives to pick out of the normal clutter. In fact, in such cases perhaps a truly ancient technology may be necessary ' the combination of the telephone and the human voice.
• e-Commerce questions may also mask underlying generational differences ( see, “Technology and the Intergenerational Law Firm,” American Association for Justice, http://bit.ly/z4Q7oj.). The business expectations of clients who cannot do business without constantly checking Facebook or Twitter, and who type their own responses in their portable device, may be thoroughly foreign to those who rely on their secretary to get out a Federal Express communication or other delivery, or a fax, by the end of the day. What may seem like a lack of competence to an e-commerce client may be nothing more than differing expectations. But if the e-commerce client allows that perceived difference to cause her firm to lose the skills and experience of counsel who has been through the business and legal challenges of past eras of technological change, then she will have done her business and its investors a grave disservice. While one can always hire an engineer or programmer or marketer with the latest skills (or train a proven employee), the benefit of sound advice, based on having seen similar challenges in many other clients, at similar growth stages, combined with the wisdom of how to apply those lessons to the current situation, is much harder to acquire.

The New Model: Much Like the Old

It is important to note that although the ethical and practice questions discussed in this article arose in the context of the constant pressures that bear down daily on attorneys in connection with the search needs of an e-commerce firm. None is, in fact, purely an Internet or search question. With slight changes in terminology, all of these challenges could have been presented in cutting-edge businesses and their service providers at any time of technological change.

The e-challenge for lawyers and clients, therefore, is not in working longer hours, or working harder at research tasks, but to be sharper and better prepared to succeed at what their counterparts may have faced at similar junctures in our economy. Were the questions and pressures (even if self-imposed) arising after the introduction of electronic financial information services, or the availability of Lexis and Westlaw, any different than those faced by today's e-commerce counsel?

Instead, the challenge posed by the search questions I have discussed is simply that faced by any attorney, whether in e-commerce or a traditional field: How to best serve a client, especially when the law or the client's business model, or the client's marketplace (or even all three), are in flux. That is not a task for the newly minted law graduate, even if she may be more conversant with the changing technology than other attorneys are. No, the skills to succeed in this situation are ones developed through experience helping clients through struggles, and through changes in their business and competition. The skills of good e-lawyering are just the skills of good lawyering, period.

Conclusion

So let me close with my answer to the questions I posed at the start of the article:

• How long do I have to search online for an answer, before I can “safely” give up?
• In a world where content changes by the second, how frequently do I have an obligation to update my results with a new search?
• How vigilant must I be in watching online sources for developments relevant to my business?

I have one answer to all these questions: A good lawyer will always pursue a client's question, be it business or legal, until a satisfactory resolution has been achieved. But because “satisfactory” implies a balance between cost and speed to achieve an accurate answer, the result will be different for each client and for each question.