The skills and tools developed for urgent regulatory compliance and forensic analysis have benefits for cost-effective electronic Disclosure in litigation.
I am just back from the Electronic Evidence and e-Discovery forum run by AKJ Associates, a two-day conference at which a stream of experts scared the hell out of companies by telling them about the perils of data control, the consequences of inadequate data control, and what they could do either (and preferably) to minimise the risks of potential problems, or to handle actual problems.
The speakers fell into three main categories – in house experts telling us what they have done, suppliers with products or services to address the issues, and academics to talk about the theory. If there was a heavy emphasis on selling the solutions – well, many of the attendees will have been grateful to know that there are solutions.
Housing shed-loads of data is not per se a problem – storage is cheap, processing is cheap, and finding a particular document or piece of data should not pose great technical or managerial issues. When your industry’s Regulator calls, however, or you are required to produce data for US litigation, you must dig out everything relevant, usually in a hurry, and with unerring accuracy. The least of the penalties for getting it wrong is an enormous financial penalty in the form of sanctions handed out by US courts for spoliation or other discovery abuses. More significant can be personal penalties, including jail sentences, or the closing down of a company’s operations either literally (where a regulator is not satisfied that you comply with some key requirement), or as a practical matter, because of the diversion of attention to addressing the shortcomings, or because adverse publicity is driving the customers away.
It would be hard enough if the only consideration were relevance to a defined subject. The old analogy of needles in haystacks is old hat, said one speaker. What you are seeking is particular needles in a needle factory. The retrospective hunt for responsive documents can be addressed, albeit at a cost, by setting large teams of skilled people with sophisticated applications and powerful processors to trawl the needle factory. The regulator, however, wants more than that. Who made this document? When? Who modified it or might have modified it? Can you prove a chain of custody and condition from creation through to now? Even that is straightforward compared with proving the negative – that there are not now, and have not ever been, other documents or data with bearing on the subject.
Then add the conflicting factors. Is there any personal data in here which is subject to restrictions at odds with the duty to disclose? Is there a jurisdictional conflict which means that compliance with one set of obligations puts you in breach of another?
If little of what we heard was new, it is no bad thing to be reminded that the second-best time to start dealing with all this is tomorrow at 8:30am (the best time was six months ago).
My particular interest is disclosure for UK litigation, a relatively benign environment where time-limits are flexible, where the financial penalties for getting it wrong are rare and where no-one ever gets sent to prison for breach of the rules. Although even I do not advocate the latter, I do feel strongly that more rigour is needed to control the time and expense of Disclosure. It seems to me that the place to find new and better ways to control the time and expense is a forum where that rigour is obligatory. Those who work under the pressures of Sarbanes-Oxley or the regulatory environment of the pharmaceutical industry ought to have pointers, tools or methodologies for those whose aim is to give and receive Disclosure in UK litigation, and to do so quickly and, if not necessarily cheaply, at least cost-effectively.
And so it proved, to some extent at least. Although all the speakers and suppliers have an interest in pointing up the big issues, and therefore their skill in bringing big solutions to bear on them, there was a recognition – at least when I raised the subject, as I did with almost everyone I spoke to – that not all problems are complex, intractable ones. Often, they are just big, important and urgent, and need to be addressed at a cost which bears some sensible relationship to the commercial considerations of the dispute.
I came away quite clear that relatively straightforward litigation disclosure has untapped potential for suppliers whose main business is the more esoteric stuff. “Straightforward” does not necessarily mean small beer, nor do I imply that there is anything easy about disclosure for the UK courts. What I do mean, however, is that the tools and processes developed for urgent regulatory compliance or other emergency data mining exercises, have something to offer to those who are concerned with bringing down the costs and the timescales of disclosure.
The bigger a problem sounds, the more likely it is that one postpones dealing with it. Big questions like “do you have a document retention policy?” sound like something best put on a distant agenda for discussion when other pressures allow, particularly if you have no reason to fear a regulatory investigation. Narrow it down, however, to more mundane matters. Forget conceptual labels like “litigation readiness” and think in terms of actual litigation. If you were the board director asked to sign a disclosure statement certifying to the court that all documents had been disclosed, could you do so? If you head the IT department which is asked to confirm that the board director could safely sign the disclosure statement, could you do so? If you are a solicitor with an obligation – to the court as well as to your client – to be satisfied that the disclosure statement is properly given, could you do so?
If you want help with any of these topics, please contact me. There is a series of articles on my web site about document retention and litigation readiness. You may like to look at one called Where do you begin?.