High-Tech Tools Can Help Create Trials And Errors Microsoft Lawyer Outlines Pros, Cons Of Technology

Technology will help lawyers do their work more effectively and quickly, said Microsoft’s chief attorney William Neukom.

But those same information-management tools have already created new road bumps in the practice of law, Neukom said Tuesday at Gonzaga University.

Video conferencing and quick retrieval of online legal research have already made lawyers more productive, said the attorney who’s spent much of the past year contending with the federal antitrust action against Microsoft.

During that antitrust trial in front of federal Judge Thomas Penfield Jackson, Neukom observed how the government used Microsoft’s own reliance on technology as a weapon to gather evidence of alleged monopoly activity.

Instead of the old pattern of filing requests for specific documents and deposing witnesses, the modern practice of law allows for wholesale subpoenas of company hard drives and complete archives of all employee e-mail.

In the antitrust trial, the result was “litigation by snippet,” said Neukom, 58, and with Microsoft since 1985.

Justice Department investigators, after examining thousands of Microsoft employee e-mails, selected dozens of messages as key evidence of alleged anti-competitive behavior.

Some of those messages were “thoughts expressed at the speed of light,” Neukom said. In most cases the messages were “watercooler” remarks that no one seriously would have considered statements by key managers outlining Microsoft attitudes or policies.

He cited the example of one 4-year-old e-mail message from a summer intern to his supervisor.

The note offered several general options for building market share and halt inroads by Microsoft’s software competitors.

The intern submitted a draft of his ideas to his supervisor, who Neukom said was “four or five levels below anybody in upper management.”

Despite that status, Neukom said, Justice Department attorneys produced the e-mail message and described it as part of “the Microsoft Bible” on how it planned to squelch companies like Netscape.

“To suggest it was useful evidence in this case is completely unwarranted,” he said about the e-mail message.

Microsoft’s attorneys made sure Jackson knew exactly who was the source of that message, he said.

On Tuesday Neukom made no reference to dozens of other e-mail messages by Microsoft Chairman Bill Gates and other company officials that the government used as evidence.

Except for the brief reference to the intern’s e-mail, Neukom avoided detailed remarks about the antitrust case, now in its final phase.

After closing arguments were made earlier this year to Jackson, both sides have engaged in court-ordered mediation.

If that mediation is not successful, Jackson will render his conclusions of law later this year. Last fall, in a “findings of fact,” Jackson said Microsoft was clearly a “predatory” monopoly whose behavior harmed consumer choices.

It’s unclear what remedies Jackson would order if he concludes Microsoft not only broke antitrust laws but must be ordered to change its business practices.

Some have suggested Jackson could divide the giant software maker into several smaller companies.

“While mediation is going on, I cannot comment on what is happening,” Neukom said after the talk.

In response to questions about how to deal with the complications caused by technology and information gathering, he told his audience that lawyers and companies must look more closely at their e-mail and technology practices.

“Attorneys must become smarter, making sure they establish clearly the context of the documents they obtain from e-mail and other sources,” he said.

During the long antitrust trial in Washington, D.C., Neukom said his role was “field manager” for the team of more than 15 Microsoft attorneys.

He never asked a question or examined a witness during the trial, preferring to sit at the defense table and confer with associates.

Neukom said: “No question, this has taken a lot of my and other people’s time.

“But I’ve got the best client in the world. It’s the kind of project people go to law school for. This has been very satisfying to work on a project this interesting.”