The first big eDiscovery conference of the autumn is IQPC’s Information Retention and E-Disclosure Management Europe conference in Brussels on 30 September and 1 October. I am going there mainly to take part in a panel organised by Guidance Software involving, amongst others, US Magistrate Judge Andrew Peck of the Southern District of New York, and Senior Master Whitaker of the Queen’s Bench Division, Royal Courts of Justice in London. We are to be joined by three European judges, Judge Abeline Dorothea Reiling, Vice-President of the Amsterdam District Court, Judge Frank Richter of the Supreme Court of Hesse, and Judge Carla Garlatti of the Court of Appeal of Venice.
Although the UK is, perforce, part of mainland Europe for many purposes, one of the (many) differences lies in our respective systems of domestic law. The UK has a common law system very much closer to the US, Australia and Canada than to France, 22 miles away from Dover. The discovery of documents is a common law concept, and one which most of Europe has largely managed to avoid until recently.
The two factors bringing big changes to Europe are firstly the growth of EU and EU-inspired regulation, which brings the same demands for documents as we face in the UK and in the US, and secondly the implications which flow for EU companies who have US parents, subsidiaries or sister companies. The requirements of the US Federal Rules of Civil Procedure, of government agencies, and of US regulatory authorities, do not stop at America’s borders. Those requirements fetch up on the reefs and shoals of EU privacy and data protection laws, giving us a legal version of the unstoppable force meeting the immovable object. One side sees bloody-minded obstructiveness; the other sees arrogant forcefulness which needs to be taken down a peg or two. People in the US are beginning, perhaps, to appreciate that privacy and data protection laws have a purpose or, if they cannot see the purpose, they can see that the laws are not easily ignored. From the EU comes the dawning of recognition that its primary reason for existence is to trade with other large entities, including the US, and that just getting in the way does not further that objective.
These subjects will be taken up by Debra Logan, VP and Analyst at Gartner, Inc.. As her session description says, “… business and technical reality have changed rapidly, leaving legal frameworks far behind”.
There is a strong UK representation at the conference. Apart from Master Whitaker and me, Greg Wildisen of Epiq Systems and Vince Neicho of Allen & Overy are running one session, probably with other UK speakers, and Alex Dunstan-Lee of KPMG has a session. There are speakers from Shell International, Barclays Wealth, Swiss Re, and Patrick Oot from Verizon amongst others. Other suppliers present include FTI, Legal Inc, NUIX and Recommind.
This is a new direction so far as the e-Disclosure Information Project is concerned. It began less than two years ago as a UK-based initiative, and has since taken in the US and Australia as well. The Brussels conference is my first venture into Europe. Before October is out, I will have spoken in Singapore, with the Masters Conference in Washington on the way. The purpose is to dig out the areas of shared interest between all these jurisdictions. Those who are concerned with and interested in the development of rules and procedures now meet and exchange ideas; the problems are the same everywhere; many of the suppliers are active in all the relevant jurisdictions.
The UK suddenly finds itself well-placed in all this – we are part of Europe and therefore the right side of the EU privacy firewall, as well as subject to the same regulatory pressures; we speak English and connect with the US and other Anglophone common law jurisdictions; we have feet in at least those parts of Asia which inherited our legal system; we have the experience of discovery in commercial litigation, with something to give, as well as much to learn, from others in terms of rules and procedures. And now there are signs, if not yet of a rapprochement between the EU and US, at least of a more useful dialogue than we have had hitherto.
It is not surprising that everyone wants to be in Brussels at the end of September. See you there.