The e-Discovery of Document Retention

The IQPC Conference on Information Retention and E-Disclosure Management, London 22 and 23 May 2007

A load of self-imposed rules and habits were cast aside this week.

I usually sit at my desk until the early hours, and dawn is something which comes at the end of the day not the beginning.

I don’t go to conferences, mainly because I usually fall asleep if I am merely an observer rather than a participant – mildly embarrassing at concerts, deeply so at business events.

I don’t name products or suppliers, partly because of a hazy notion that I compromise my independence by doing so and partly for fear that rival suppliers will never speak to me again.

So it was a little out of character that, for two days running this week, I was on a train to London at 5:51am for Legal IQ’s conference on Information Retention and E-Disclosure Management. I stayed awake and interested through nearly 18 hours of a very deep and wide exploration of the issues implicit in the conference title, and I name the supplier with no qualms.

How is there so much to say about Disclosure? When I qualified as a solicitor, the exams required no knowledge at all of practical things, nor frankly was there much to learn about routine Discovery of documents. During my articles, I read Order 24 of the then Rules of the Supreme Court, learnt that the target was all “documents which are or have been in [a party’s] possession, custody or power relating to matters in question in the action”, grasped the basics of privilege, and piled into the client’s boxes of paper with a dictating machine, a secretary and an IBM Golfball typewriter.

Today’s equivalent is – or should be – just a stage in the client’s document management strategy, a strategy which begins with the in-house rules about how many days a document survives on the system and what criteria decide whether it is kept, and for how long. It ends, if you get it wrong, with your company’s name indelibly linked to a ground-breaking court decision like Zubulake.

Volumes have gone up enormously and timescales have come down. Electronic documents are easier to make and replicate, cheaper to store and harder to erase. They exist in multiple sources and forms. The duties in respect of them have increased but few senior managers can say with certainty even that they know where they all are, let alone what they are.

The very definition of a “document” has changed. The UK court rules have adjusted, up to a point, but the court, and your opponents in court, are not the only parties interested in your documents. Many businesses and industries are heavily regulated and may have obligations to produce documents either at short notice in response to a regulator’s knock at the door or, over a longer term, to prove that their systems comply with auditing requirements. Businesses operate in many countries, and jurisdictional conflicts may – and frequently do – arise. Privacy and data protection laws impose additional duties, often at odds with other obligations.

Just as technology provides the tools for the creation and storage of the mass of documents and e-mails, so it provides – a step or two behind – the tools for tracking down, clearing up, controlling and re-presenting them. One of the many messages to come out of the IPQC conference, however, was that technology, however useful, is secondary to the management and cultural aspects of information retention and e-disclosure.

There were four broad categories of speaker:

Legal Counsel from large companies describing their experiences in implementing and managing information retention policies, and the lessons learnt

Lawyers discussing the court rules, regulation, privacy and privilege

E-Disclosure consultants, suppliers and litigators talking about the practice of e-Disclosure – the methodologies, the trends, the tools and the tips from collection through to inspection.

The enforcers – Master Whitaker of the Queen’s Bench Division, Hon Judge Scheindlin of the Southern District Court of New York and Peter Hustinx, the European Data Protection Supervisor.

Between them, the speakers covered document handling from cradle to grave, from the moment a user presses <Send> to the point where Judge Scheindlin imposes heavy sanctions for spoliation or destruction of electronic evidence. Whilst her decision on sanctions in Zubulake v UBS Warburg is the one which has grabbed the headlines, her opinions in that case also covered wider aspects of the duties which arise on Discovery, including the lawyers’ responsibility to ensure that their clients preserve electronic data.

Anyone in the UK who thinks that we will never go that far should consider two things – the accelerating rate at which change occurs, and the fact that most of the elements of jurisdiction which underlay Zubulake already exist here. Our court rules may appear to approach the problems with crab-like imprecision, but there is enough there for the court to use to mark its displeasure towards a party whose Disclosure has made a bad impression. It just needs the right judge and the wrong case, and that case is as likely to involve a Midlands engineering company as a multi-national bank.

“Impression” may sound a weak term to use, but impression matters, not just in the court, and not just in the run-up to court, but in a company’s business. Sure, it matters that the judge forms an adverse opinion of a company because of the state of its evidence, and it matters if its negotiating position is undermined by apparent holes in its disclosure. It may matter rather more, however, if a company gets an adverse finding from its regulator, or defends a claim which it would have settled if all the evidential material had either been easily available and identifiable or could properly have been destroyed in the ordinary course of business pursuant to a fixed and defensible policy. Business reputation matters more than anything.

The IQPC speakers kept coming back to this. Behind all the discussion on the mechanics of e-Disclosure and on the legal implications of privacy, jurisdiction, data protection and privilege were two constant themes – that business reputation mattered most and that the place to get it right was at the source.

Certainly, and obviously, litigation-readiness mattered, and a company which had its documents in order from the outset would save money and make better and more timely decisions if and when litigation arose. That, however, is really a by-product of an information retention strategy rather than its main purpose.

One other word kept coming up at the conference – not a technical word, nor a legal word, nor a term of art from some abstruse regulation. It was “communicate”. In a context in which it is vital to know what you need, to know what you have got, and to know where it is, there must be communication between the lawyers and the client, the directors and the IT department, and the management and the staff.

I will explore some of the issues more fully here and on my web site.

 

So, to revert to my personal take on this, I now know what Hyde Park looks like at 7:00 in the morning. I have stayed awake and interested through hours of talk and, if much of it was familiar territory, the mix of experiences and skills added a valuable dimension. And, for the first time, I have named a supplier.

www.iqpc.com

About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Document Retention, eDisclosure, IQPC, Litigation Readiness, Litigation Support. Bookmark the permalink.

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