Daring to Share
Eldon Fallon, a U.S. District Court judge, is handling a multidistrict lawsuit involving more than 100 lawyers, 60,000 claimants and 9 million documents to date. To complicate things, many of the deposed witnesses are in Switzerland, Belgium and France.
The lawsuit consists of more than 70 cases in which plaintiffs have alleged certain actual and potential risks associated with the medication known generically as Propulsid, used to treat nocturnal heartburn in adults. In Re Propulsid Products Liability Litigation, MDL No. 1355 (E.D. La. filed Aug. 7, 2000).
In an effort to make the suit run smoothly, Fallon has insisted that all documents be produced electronically on CD-ROMs. The New Orleans judge has eliminated virtually all paper correspondence between the sides, replacing it with e-mail notification, and has set up a videoconferencing system so that lawyers can take depositions on the Internet.
Fallon has also set up a system that allows experts hired by each side to suggest questions by way of instant messaging during these Internet depositions.
Fallon, 64, spent more than 30 years as a trial lawyer before becoming a judge nine years ago. To him, computers and the Internet are the best way to get a handle on a complex case. But even though he’s gotten all sides in this case to support almost all of his technology decisions, there is one element Fallon has failed to get anyone to agree on. He had hoped that building a document repository and allowing lawyers access over a secure Internet connection would simplify the litigation and reduce costs.
But after meeting with both sides to discuss the technology, the idea was nixed. “I think they were concerned that someone on the other side would find out what they were searching for, that [their opponents] would find their work product,” says Fallon. “Hackers and viruses were a concern, too.”
Simplicity, Efficiency, Convenience
A document repository is simply a database of legal documents. Law firms have the option to make these databases available online. These offers a couple of advantages: First, a firm can outsource its document repository to a third-party technology partner, saving on costs in hardware, software and hiring technology experts.
Online repositories also allow firms to share documents with other offices, partner law firms or lawyers working at home. The discovery phase of large cases—such as the current Wall Street litigation, major criminal investigations and class action lawsuits—is often handled in this manner.
Phoenix-based Lex Solutio is the court-appointed firm providing document databases for the Enron civil litigation, and repositories for government prosecutors. “I think lawyers are seeing that if we have security that’s good enough for the government, it must work,” says Steve Moore, vice president of technical services.
Document management firm Daticon, based in Norwich, Conn., hears from lawyers who are concerned about security. “But that happens when any technology comes out,” says Mike LeHoux, vice president of technology. “Lawyers are slowly getting comfortable with the idea of putting their documents online.”
The lowest level of security that document database firms offer is 128-bit SSL encryption, which is the same security level used by online banks to send information. That means that in the unlikely event someone has bugged a computer or can intercept a transmission, it will only appear as scrambled data.
The worst-case scenario would be someone leaving a computer unattended, says Paris Georgallis, vice president of technical operations with Case Central, a San Francisco-based company. “But even then, we track all changes, so you can find out if something happened. There’s typically no audit trail in the paper world, so arguably, paper is much less secure.”
If firms require greater security, there are additional electronic options. These include firewall software that a law firm can set up, as well as software that automatically rejects traffic coming from an unauthorized Internet address. Some firms pay for a dedicated data line between specified computers. At the database itself, access can be restricted to specific users, and those restrictions can be broken down to which documents or even which fields in a document certain people are allowed to see.
Even though it is rare that competing sides will use the same document repositories, outsourcing firms say it is possible to isolate case documents from any work product or records that a lawyer might produce. This means that opposing parties could use the same database without ever knowing what the other is doing with the documents.
Of course, security is not the only concern to consider in an online repository. Law firms have to decide whether they want documents stored in their native formats, like Microsoft Word or Excel, or stored in a format such as Adobe PDF or the common TIFF format. The downside to using native formats is that all the lawyers involved need to have the right software on their computers to read the documents. If firms cannot agree on decisions like that, it may be impossible to share documents online.
Some firms will reject the electronic option simply because they like paper better, either because paper makes life more difficult for their opponents or because they’re used to it. “Some law firms’ strategy is still to bury their opponent in paper,” says LeHoux of Daticon.
But document repository firms think the legal community will ultimately embrace the technology. “You almost have to use technology since so much evidence is now in electronic formats anyway,” says Jay O’Connor, vice president of marketing with Case Central. “It’s going to be too expensive to handle documents any other way.”