Why Didn’t Amy Pascal Just Pick Up The Phone?

by Michelle Dean

Aaron Sorkin, burnishing his credentials as He Who Blows Hard While Knowing Little, has an op-ed in the New York Times today complaining about the journalistic feeding-frenzy on the hacked Sony emails. Naturally, his rhetoric spirals into the atmosphere. For example:

As a screenwriter in Hollywood who’s only two generations removed from probably being blacklisted, I’m not crazy about Americans calling other Americans un-American, so let’s just say that every news outlet that did the bidding of the Guardians of Peace is morally treasonous and spectacularly dishonorable.

You know, I haven’t looked at HUAC transcripts recently but I wouldn’t be surprised if accusations of “treason” and the like came up just as often as accusations of “un-Americanness.” Sorkin might want to cool it. Discomfort with the fact that these documents are stolen and worry about what this heralds for the protection of personal employee information is perfectly legitimate. Talking about journalism in terms that belong in some Lifetime remake of Braveheart, much less so.

But Sorkin’s not alone. Handwringing about the “ethics” of the Sony hack is at high tide right now. It puzzles me, mostly because I didn’t start out as a journalist, I started out as a lawyer. And as a lawyer, my sympathy lies with the poor in-house counsel shmuck who has undoubtedly been saying to Amy Pascal for years, “Please just pick up the phone next time.”

See, at the heart of Sorkin’s complaint is the idea that the studio’s business records are subject to an inviolable right of privacy. But even Sony’s lawyers know that’s never the case.

Crap emails, to borrow an old Jezebel phrase, have long gotten businesspeople in actual trouble. When I was a very bored first-and-second-year corporate litigator, a good portion of my job was devoted to trawling through other people’s inboxes. I worked on securities litigation and bankruptcy cases, so mostly it was investment bankers’ emails I’d end up with. But the principle extends everywhere. I’d always be looking for information about some dry financial transaction, but you’d be surprised what kind of asides would get tangled up with those business emails. Pictures, insults, “jokes.” And more than once, those “jokes” ended up bearing on the dispute at hand, getting cited in legal briefs, relied on by judges in their rulings.

Email, in other words, has long been something lawyers told rich businesspeople to be careful with. Even jokes that seem harmless at the time can come back to haunt you.

Take, for example, the colorful emails that flew back and forth about the production of the Jobs biopic. If anyone involved in that mess had decided to sue someone else, on virtually any theory, all of those emails would have been pulled into the case. Discovery standards in American courts are very wide; you can pull in virtually anything that’s relevant. Scott Rudin’s off-the-cuff assessment of Angelina Jolie’s talents could very well have been the lynchpin of someone’s argument about a contract. Even if the whole thing never went to trial, the size and nature of any settlement might well have hinged on his “candid” emails. And all that would happen whether or not Rudin liked it; in the context of a lawsuit his consent would be as irrelevant to the court as it is to the hackers.

Have all the qualms about hackers that you like, of course. But it’s odd to pretend that these big fancy business people had no idea of the risk. They chose to ignore it in favor of the expediency of negotiating over email, fine. But these men doth protest too much, I’m saying.