Parallel and cross-border developments in eDiscovery

I have just had to turn down the opportunity to speak at a conference organised by LexisNexis in Hong Kong on 20 and 21 July. The invitation was to deliver the keynote speech at the start of the first day with the heading  Globalisation and Digitisation: the Rising Need for Digital Forensics and E-Discovery in Today’s World, which I would have been extremely happy to do.

My Mother’s 80th birthday party is on the previous day and my eldest son’s graduation ceremony is in Leeds on the day following. I could, with a fair wind, have made it to Leeds with two hours to spare by racing at dawn from Heathrow to Gatwick. I have done worse things – my breakfast-in-Sydney-dinner-in-Washington trip last October didn’t allow even time for an espresso between terminals at LA and, as I recounted last week, I made it from Orlando to IQPC in London just as the conference opened. I am game for that sort of thing, but not for missing my Mother’s birthday.

You may recall that I missed the chance to go to Hong Kong earlier in the year to tie in with Lord Justice Jackson’s visit there. Vince Neicho of Allen & Overy was there and he kindly sent me this report of what took place:

Although we returned to London the day before the Rugby 7’s started – I am sure much to the benefit of our health – our March/April trip to Hong Kong was otherwise very well timed.  Hong Kong was about to implement its Civil Justice Reforms and Epiq Systems had just launched its Hong Kong office.

Lord Justice Jackson and his entourage from the Civil Justice Council were in town on their global fact-finding mission to see how the rest of the world deals with the thorny issue of costs; and Senior Master Whitaker, Greg Wildisen of Epiq Systems and I were in town to tell the latter’s Hong Kong clients how the rest of the world (well, England & Wales and the odd mention of the US, anyway) deals with e-disclosure.

The first challenge for the e-disclosure team could have been that the new Hong Kong rules (in common with the old ones they are replacing) make not even a passing reference to e-disclosure, e-discovery, ESI or e-anything else document related. It is, of course, necessary for litigants in the Hong Kong courts to meet discovery obligations generally and, in this electronic age, they do need to know how to manage and process their electronic documents to satisfy those obligations.

There was a healthy cross-over between the two groups.  Master Whitaker met with various members of the Hong Kong judiciary, both in company with Lord Justice Jackson’s group and independently, and Lord Justice Jackson and some of his team attended the seminar that Master Whitaker and Greg and I (Vince) presented at A&O’s offices. Lord Justice Jackson was able to enhance his understanding of the challenges posed by e-disclosure and its impact on costs for his report. I was able to introduce myself as the contributor of one of the comments quoted in the report and Master Whitaker was able to provide a sneak preview of the contents of the e-disclosure questionnaire and e-Disclosure Practice Direction that his group (which includes me and Chris Dale) are drafting.

All in all, a resounding success.  So much so, that the e-disclosure seminar is to be repeated in London in the Summer and in Singapore later in the year.  Watch this space!

Thank you Vince.  What matters out of all this is that the problems raised by electronic documents are the same wherever the court rules require discovery / disclosure, and we all gain if we share the ideas which develop in each jurisdiction to tackle them. We have taken large strides towards this in the last year. Sir Rupert Jackson’s Preliminary Report showed how much attention he has paid to what others are doing, and the result will (indeed, is already) being influential in those places. I am willing to predict that the costs management ideas which Sir Rupert set out in Birmingham last week (see Jackson launches costs management trial in Birmingham) will have impact everywhere, not least for his ability to spell out the consequences of not controlling costs both generally and in respect of discovery.

My wife has just taken up bee-keeping, and an easy analogy comes to mind between the pollination proclivities of bees and the efforts of the small band of people from these jurisdictions who travel to hear and speak about the steps being taken to control this aspect of litigation costs. If I do not make it to Hong Kong this year (and I very much want to) I will be in some of the other countries where this is an issue – but also in Birmingham and other cities in the UK, picking things up in one place and dropping them in another like my wife’s bees. There is more to this than experience of laws and technology – if you can survive the expensive incompetence, the unreliability and the contempt for the customer shown by Britain’s railway companies, the world’s airlines seem almost a pleasure to travel with.

Browning Marean of DLA Piper US LLP will be at the Hong Kong conference. DLA’s web site lists 42 offices worldwide which must make them one of the most omnipresent law firms in the world. Browning’s messages about competence and costs transcend jurisdictional boundaries and, as America’s court’s, regulators and government agencies extend their reach (their purported reach, anyway), those messages are needed everywhere.

I hope that someone from the UK will speak at the Hong Kong conference. There is a lot going on just now and the need for two-way traffic in ideas increases. There are two distinct headings here: one is what is happening in parallel in the various jurisdictions as rules and practices, as well as problems and solutions, develop. The other is the problems raised by cross-border discovery, as data privacy and data protection laws conflict with (mainly US) demands for data and documents.

That is the subject of the Sedona Conference International Programme on Cross-Border eDiscovery and Data Privacy on 10 and 11 June in Barcelona. I will miss the beginning because I am chairing Day 2 of the Ark Group conference E-Disclosure 2009 in London on 8 and 9 June and there is insufficient time between the closing panel there and the last flight to Barcelona. I will be there in time for the two panels which HHJ Simon Brown is taking part in on Wednesday afternoon, The Cross-Border Conflict Problem in Litigation and Regulatory Contexts and The Cross-Border Conflict Problem in Arbitration and Alternative Dispute Resolution Forums.

Senior Master Whitaker is delivering the keynote speech on Thursday with the timely title UK eDisclosure Developments as a Study in Contrast with US Discovery. There may or may not be a trend towards convergence between the US approach to handling and managing electronic disclosure. There is certainly much more interest in each others’ systems than there was a year ago.

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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 Case Management, Court Rules, CPR, Data privacy, Data Protection, Discovery, eDisclosure, eDisclosure Conferences, eDiscovery, Electronic disclosure, FRCP, Litigation Support, Lord Justice Jackson, Regulatory investigation. Bookmark the permalink.

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