ATLANTA –Even as computers help corporate lawyers enlighten patent examiners with animated molecules, explore reservoirs of unspoken workplace hostility and render weightless tons of court briefs, these attorneys are raising tough questions about the new technology’s impact on their work.
“You tie everybody together, and you have all this information flying back and forth all of the time,” said Joseph R. Gladden Jr., senior vice president and general counsel of Coca-Cola Co., said at an American Corporate Counsel Association conference on “Legal Issues on the Information Highway,” May 11-13 in Atlanta. “How do we preserve the thing that’s the important part — making judgments and giving sound advice?”
Instant access to information requires instant decision-making, he said. And sometimes the best thing to do is not to make an instant decision, but to wait and think. “We risk going helter-skelter down this path without asking ourselves if we are still doing what we’re supposed to do,” Mr. Gladden said.
Other attorneys echoed his concerns in a discussion of the Internet and other online resources: Although they provide instant connections, how private are the conversations? How trustworthy are information and briefs passed between lawyers who have never seen each other? And in the end, will the computer increase efficiency, or just increase costs?
Even those attorneys raising questions agree, however, that greater use of computers in corporate legal practice is inevitable.
Joseph W. Bauer, vice president and general counsel of Lubrizol Corp., a maker of motor oil additives, showed computerized animation the company developed with Z-Axis Corp. of Englewood, Colo., to explain its processes before environmental regulators or to defend patents on its products.
On a large video screen, the audience watched blue and red molecules float through a tube in a simulation of “gel permeation chromatography,” an important process in the motor oil additive business, probably little understood by average juries. Mr. Bauer used an electronic pencil on a small, identical video screen to circle and outline images — the same effect made familiar to TV viewers by football commentator John Madden.
One lawyer raised an issue: Juries can’t take those electronic circles or outlines into deliberations with them. Although the image of the underscored point may stick in their minds, it never has been entered as evidence, as are the lines and charts counsel draw on the traditional easel. Z-Axis President Steven H. Cohen said the way to preserve the image as evidence is to videotape the presentation — a possibility that adds more grist to the debate on cameras in the courtroom.
A more unsettling presentation came from John H. Jessen, managing director of Electronic Evidence Discovery Inc. of Seattle. His business specializes in finding all the e-mail messages in corporate computer systems that people thought were destroyed when they hit the delete button or reformatted their disk drives.
In actuality, most data can be restored unless it has been overwritten, Mr. Jessen explained, and even overwritten documents can be deciphered. He described how such recovery helped to conclude one he-said/she-said sexual harassment case. The woman’s boss said her firing was for economic reasons, but his recovered e-mail to her direct manager said, “I want you to get that [redacted] tight-assed bitch out of here. I don’t care what you have to do.”
The corporation settled her case for $ 250,000.
Mr. Jessen explained that plaintiffs have been successful in getting court orders to search corporate e-mail and computer files, often arguing that these are the only records that exist. Corporations generally have not applied their paper retention and destruction policies to computer records (which Mr. Jessen suggests that they do). In one corporation, Mr. Jessen said, his firm found a back room of 22,900 nine-track computer tapes covering 25 years of corporate history, all of which were carefully stored by the nine-track librarian, “Floyd,” and all of which now are under court order. “Every company has a Floyd,” said Mr. Jessen.
Other developments appeared more beneficial to corporations, such as the use of computer systems to audit outside counsel bills. Describing a system being used by Mutual of New York, Richard E. Mulroy Jr., senior vice president and general counsel, explained how outside counsel fill in forms with coding to sort out the different jobs they do.
Jed S. Ringel, president of Law Audit Services, who developed Mutual’s system, showed how corporations can track such issues as how much work is being assigned to partners and how much to associates. In one case, computerized time records revealed that two associates were spending widely varying amounts of time on the same task of summarizing depositions. A closer examination showed that one associate wrote in the short, declarative style of Dashiell Hammett, while another’s rich detail emulated James Joyce, said Mr. Ringel. The difference to the corporation in terms of billing: $ 30,000.
But the place in corporate legal life where computers seem most suited to thrive is in the complex litigation of the 1990s, such as environmental insurance disputes. Sara Straight Wolf, vice president and general counsel of Mead Data Central, described how the Nexis/Lexis company has developed a system used in a Superfund toxic waste cleanup case and in asbestos litigation in Delaware.
In these cases, which can generate millions of pages of documents, all of the “paper” has been turned binary. Lawyers file all of their briefs electronically, and the only paper they handle is a fax to notify other attorneys that a new filing is in the system. They then can call up the system to search and retrieve all of the files throughout the history of the case.
Litigating corporations have raised objections to paying a one-time $ 200 set-up fee plus fees for connecting to the system and retrieving documents they formerly got for free, Ms. Wolf says. As a result, in the most recent Mead Data litigation system in Delaware, lawyers can opt for free access to the system, although this route is far less useful — it is designed so lawyers can’t search for files using key words.
But for making the system possible, Ms. Wolf said, “I have to say, ‘Hurray for private enterprise.’”
Copyright 1994 The New York Law Publishing Company