I demonstrated my own commitment to information retention by mislaying my notes of the sessions at IQPC’s Information Retention and E-Disclosure Management Europe Conference in Brussels last week. As with all the best document retention policies, this means that I do not have to wade through masses of information and can focus instead only on that which is important – “important” in this context meaning what I can remember. It is reasonable to assume, perhaps, that the bits I remember are those which mattered most.
We kicked off with a judicial panel moderated by Patrick Burke, Senior Director and Assistant General Counsel at Guidance Software. Patrick is one of the relatively few in the US who “gets” the idea that, however sophisticated the US legal system may be in many respects, those who do business in a multinational context must take notice of jurisdictional differences. Rather too many assume that things are much the same over here if you shout and wave your arms about.
The panel comprised US Magistrate Judge Andrew Peck of the Southern District of New York, Senior Master Whitaker of the Queen’s Bench Division at the Royal Courts of Justice in London, Judge Dory Reiling, Vice President of the Amsterdam District Court, Judge Carla Garlatti of the Court of Appeal of Venice, and me. Its title was E-discovery from the European Judicial Perspective. To the Dutch and Italian judges, the widespread use of electronic documents as evidence is something which remains on the horizon, albeit the near horizon, which is what you would expect in jurisdictions which do not directly depend on party-led discovery. The Venice courts have been working on electronic communication between lawyers and courts, but the parties’ electronic documents had not raised their heads in any quantity. Judge Reiling had recently returned from a US conference and, one would guess from her CV and her contribution to the discussion, is ready for whatever comes along – how many senior judges do you know with a web site and a blog called Technology for Justice with the sub-title Information Technology for Judicial Reform?
Judge Reiling drew the helpful distinction between ordering the production of evidence on her own court’s principles of admissibility and the export of that data. Master Whitaker, who is responsible in the English courts for dealing with Hague Convention applications, suggested that the international treaty obligations behind the Hague Convention should normally over-ride domestic (by which he meant EU domestic) laws. One of the biggest problems with US-derived requests he said, in a point which was to recur, was a lack of specificity. Requests can fail on that ground alone regardless of the underlying merits.
Over-broad requests featured in Judge Peck’s lively contribution to the discussion. He referred in particular to Judge Grimm’s Opinion in Mancia v Mayflower which had alerted US lawyers to the fact that grapeshot applications for everything are very likely to miss everything as the court increasingly required more focused requests and punished with sanctions those whose conduct was not proportionate.
When I first heard Judge Peck speak, eighteen months or so ago, what he said reflected the then prevailing view on the US side that US courts made the orders which they thought appropriate for their own court and left it to the parties to sort things out as best they could – which, he told us, they generally did. There is a greater recognition now, he said, of the implications of EU data protection and privacy considerations, and US courts are more likely to take note of them and the fact that parties may find themselves between a rock and a hard place may make sanctions less likely. A party’s inability to produce documents may, nevertheless, have adverse implications for their case in US courts, not as a matter of punishment, but because crucial evidence was not in front of the court.
The next panel, also moderated by Patrick Burke, consisted of Patrick Oot, Steve Watson of Intel Information Risk and Discovery, Denise Backhouse of Morgan Lewis and me.
Denise Backhouse and I each presented White Papers which we had written in conjunction with Guidance Software. Mine was called UK eDisclosure Turning Point: The Corporate Focus on Cost-Effective Collection and Processing of E-Mail and Electronic Documents for Litigation and Regulatory Purposes and was a summary of the factors which are forcing UK corporations to focus on their ability, or lack of it, to produce documents in a timely and cost effective manner. The judgment in Digicel v Cable & Wireless, Lord Justice Jackson’s pending review of litigation costs, the proposed new e-Disclosure Practice Direction and e-Disclosure Questionnaire, and the announcement of a new Judicial College are factors, I said, which will force the lawyers and their clients to address the subject. Even if litigation is considered optional, regulated companies have no such luxury when the regulator’s representatives may appear on their doorstep next week. European companies faced the same local implications, as well as interventions by US regulators and US courts. There was nothing theoretical about this: I cited an example given recently by London-based litigation provider Legal Inc of a regulator’s officials sitting impatiently in reception and waiting for the first documents be available for review. Illustrations like this help concentrate minds.
Denise Backhouse’s paper was called Seeking a Balance in the Discovery Equation: Pre-Trial Disclosure/Discovery in UK and US Civil Litigation of European-Based Data. As well as a summary of the implications for foreign corporations of EU data protection laws, and an idea of emerging trends, Denise gave some helpful pointers in the paper as to steps which might be taken to minimise the time and cost, and to maximise the chance of getting what was sought.
Patrick Oot, now free-ranging, aims to devote more time to the challenges of electronic discovery through the eDiscovery Institute and via other means, including a travel agenda which comfortably (if that is the right word) beats even mine.
Vince Neicho, Litigation Support Expert at Allen & Overy in London, is always good on the positive reasons for engaging properly with electronic documents where most people major on the defensive and reactive purposes. His session was called e-Disclosure — Am I bothered? and, as his sessions always do, it served as a primer as to the actual purpose of electronic discovery as well as the mechanics.
Vince Neicho also took part in the closing panel for the first day, which I moderated. The other panelists were Greg Wildesen, International Managing Director of Epiq Systems and Master Whitaker. With panelists of this calibre, I can ignore such preparation as we make and throw questions in turn to a judge, a software supplier and a litigation support manager, knowing that I will get back informed and interesting answers which will hang together as a seamless presentation. Pure pleasure, from my point of view at least, and I hope that this came across to the audience.
Epiq has just announced an enhancement to DocuMatrix called IQ Review which, when Greg Wildisen was telling me about it last week, was instantly recognisable as an integration of Equivio->Relevance, one of the most exciting developments in document review for a long time. I will write more fully shortly about Equivio->Relevance itself (I had a demo yesterday) and Epiq’s integration of it. Its primary characteristic – the interplay of the lawyer’s own skills and thought processes with the application’s functionality to produce results which are not only credible but transparent, ties in with my closing point of this session — that the best technology lies between your ears.
Day 2 brought an interesting session by Alex Dunstan-Lee of KPMG in London. That included a preview of a survey which KPMG have conducted worldwide in which corporations were asked about their own perception of their ability to handle e-discovery requests for litigation, regulation or internal purposes. The broad conclusions will surprise nobody working in this area – that between a small number who reckon they are on top of the problem and the equally small number who do not see that there is a problem, lie the majority who know there is something to grasp and are at various stages on the path towards implementation. Alex made two comments in particular which are worth passing on: one is that senior management who say they have other priorities are not necessarily wrong, however important this issue is; the other is that electronic data may exist in ever-increasing volumes, but it is very much easier to manage and to search than was the case with smaller volumes of paper documents. His first point was not intended to diminish the urgency with which companies should be considering information management, and his second one did not imply that it was easy, but they were useful correctives to air.
We have to wait and see from the assessment forms what the audience reaction was, but the anecdotal feedback was very positive. As always, I spent more time with people outside the sessions than I did in them and, as I said in my post Learning in good company at IQPC e-Disclosure Conference in Brussels, the discussions beyond the sessions, using their content as the pegs, is extremely valuable. I have bided my time as to Europe whilst focusing on developments in the UK, the US, and other common law jurisdictions. The message from this conference is that the e-Discovery waves are now crashing on Europe’s beaches and everyone in this area – companies, judges, suppliers and lawyers – must pay attention to what is happening there.
My thanks to Sonia Perez of Guidance Software and Hayley Crease of Epiq Systems who took the photographs despite patchy lighting and the clutter of microphones and bottles.