Technology On Trial
Walking a Confidentiality Tightrope
By David Horrigan
LAWYERS, especially those at larger firms, deal constantly with the client confidentiality issue of the "Chinese wall."
Connie Nichols-Hughes, principal partner of Docusource Litigation Support Solutions, in front of a key exhibit
As Connie Nichols-Hughes of Docusource Litigation Support Solutions in New Orleans discovered, this practice can apply to legal technology consultants as well.
Named for the Great Wall of China, the "Chinese wall" represents the impenetrable barrier law firms must establish when one member of the firm represents a client whose interests may be adverse to those of another client of the their firm.
The only way the firm can keep both clients is if the clients agree -- and the firm's employees working for one client do not communicate in any way about the legal matter with their colleagues working for the other client.
In a recent major tort action, Nichols-Hughes not only had clients with a potential conflict, she worked for both sides in the same trial. In this Louisiana case, Connie Nichols-Hughes had to establish what amounted to a Chinese wall for legal technology.
On July 5, 1999, an explosion rocked the Kaiser Aluminum Plant in Gramercy, Louisiana. More than two dozen workers were injured in the blast, which leveled major portions of the plant, shook nearby homes and businesses, and spread corrosive bauxite dust for miles.
In addition, the destruction of the plant affected the nationwide price of aluminum because the plant was a major supplier of alumina, the raw material used to make aluminum.
The first lawsuits were filed the day after the explosion. Eventually, a class of approximately 26,000 personal injury and property damage plaintiffs was formed. Kaiser Aluminum & Chemical Corp. and its insurers filed suit against several contractors, alleging that the explosion was caused by a faulty electrical system, which caused a power outage, which, in turn, caused the explosion.
Judge Pegram Mire of Louisiana's 23rd Judicial District Court in St. James Parish consolidated the Kaiser suit, the class action, and dozens of other cases into In re: Gramercy Plant Explosion at Kaiser, No. 25975 (La. 23rd Jud. Dist. Ct. Nov. 19, 2001).
Gramercy Digestion Unit Before Explosion (ca. 1996)
Gramercy Digestion Unit After Explosion
As discovery began, Kaiser retained Docusource to manage its document preparation. Ordinarily, Docusource's involvement in the case, while important, would not have been particularly noteworthy. Expedited discovery changed all that.
With the new discovery schedule, the plaintiff group attorneys and the lawyers representing the two remaining defendants, Thomas & Betts Corp. and Schweitzer Engineering Laboratories, Inc., had a problem. The case that they expected to drag through the court system, possibly for years, got a confirmed trial date, and it was in the near, not the far, future.
How could they possibly coordinate the hundreds of thousands of documents in the case in a fraction of the usual time?
The parties agreed that the best way to meet this tight deadline was to have Docusource coordinate the documents for both sides. This unique situation could have caused problems.
Ernie Gieger and Sharon D. Smith of New Orleans' Pulaski, Gieger & Laborde, L.L.C. were two of the attorneys representing Thomas & Betts. Recognizing the potential conflict in having one vendor managing the confidential documents of both sides, Gieger said, "It's a question you have to ask yourself, and clear with your client. Connie's excellent reputation made the decision much easier." Added Smith: "We were very confident that Docusource had a solid Chinese wall established."
One Stop Tech
View from the St. James Parish courthouse
Kaiser Aluminum & Chemical Corp.:
Counsel: Richard Sarver and Rachel Wisdom; Stone, Pigman, Walther, Wittman & Hutchinson. Ernest Edwards, Jr.; Lemle & Kelleher L.L.P.
Technology Coordinator: Connie Nichols-Hughes, Stephanie Franks. Docusource Litigation Support Solutions
Hardware at trial: Dell Inspiron 8000 Pentium 4; Dell Insprion 7000 back-up; One Custom-built Pentium 4; 100 GHz, 500 RAM (war room); Gateway 2000 Monitor; ELMO EV500 AF; Proxima 6850+ 2000 lumens; Ricoh Scanner; Epson Sylus Color 880 Printer; Hewlett Packard 5SI Laser Jet Printer; VCR/DVD player.
Software: Windows 2000; Trial Director; Concordance 7.2; Microsoft Power Point; Summation iBlaze and Realtime.
Thomas & Betts Corp.:
Counsel: Ernie Gieger Jr. and Sharon D. Smith; Pulaski, Gieger & Laborde.
Robert Winn, Sharon Mize, Andrew Braun, Joy Braun; Sessions & Fishman.
Schweitzer Engingeering Laboratories Inc.:
Counsel: Martin Golden and Connell Archey; Kantrow, Spaht, Weaver & Blitzer.
Hardware: Same as above because they shared the trial technology expenses.
Software: The same except that defendants used Summation 5.21.
* Other defendants settled prior to trial.
Rick Sarver of New Orleans' Stone, Pigman, Walther, Wittman & Hutchinson was one of the attorneys for Kaiser. "Frankly, I did have concerns," said Sarver when asked about having one vendor managing the documents for both sides. "But, we had a very rapid pace of discovery. We had to get the documents ready for trial in a very limited amount of time," he added. Docusource did a good job of keeping confidential information "behind the wall," said Sarver.
Nichols-Hughes also faced the challenge of streamlining the case documents into a system that would be manageable during discovery and trial. When she started with the defendants, she first offered a "turnkey" system, using Summation ligitation support software, from Summation Legal Technologies Inc. "Not only did we sell them the software, we trained them on how to use it," she said.
Gieger appreciated the efforts: "I was glad we had someone who had the technological skills to answer my questions across the board."
The plaintiff team choose a different vendor's product for its litigation support and document management: Dataflight Software Inc.'s Concordance 7.2.
"Using both Summation and Concordance was not a problem at all," said Nichols-Hughes.
Even with the different software applications, she was able to provide a streamlined, consecutively numbered system, while still allowing the plaintiffs to use Concordance and the defendants to use Summation.
Docusource's dual role in the Kaiser case may be a trial strategy opposing firms may use in the future.
Nichols-Hughes at her New Orleans office
Although Sarver had his reservations, he noted, "I would do it again. We had a lot of people in a very cramped courtroom. It would have been awkward to have multiple technology consultants trying to operate in that small space."
Smith added, "Having one vendor made things much easier, and with the confidence we had in Connie, I never had the slightest concern my trial strategy was being revealed."
David Horrigan is assistant editor of The National Law Journal and contributing editor of Law Technology News.
Photos by Monica Bay, except "before" and "after" photos, provided by Docusource.