The 2009 Masters Conference takes place in Washington on 12 and 13 October. Its title, Global Corporate Change – Navigating Discovery, Risk and Security covers only a fraction of the subjects covered in two days.
The best part for me last year, and the main reason I went, was a keynote speech by US Magistrate Judge John Facciola which I reported at length (see Leadership in Litigation). This took the debate beyond court rules and litigation technology and up into the importance of the court as a component of society. There is a direct line between competence and the efficient use of technology (on the one hand) and access to justice (on the other). Lawyers, judges, and governments which do not to make the courts accessible to everybody are not just failing their clients, the parties appearing before them or those whom they govern. Judge Facciola has the knack of making these things sound not just worthy sentiments but objectives directly related to our daily work.
What makes this job interesting is the breadth, from the minutiae of data handling to matters of state policy. There is almost no corner of the field which is not touched on in the course of the two day conference. If I pick out just the sessions from the program on the entirely random basis that I know the speakers, that is enough to give you the flavour of it.
If importance is thus ranked arbitrarily by the number of panelists whom I know, then, apart from my own session, the Autonomy one comes top of the list. Called When good faith is not enough, it is led by Deborah Baron VP, Legal & Compliance at Autonomy and includes the other well-known Baron of the e-discovery world, Jason Baron, Director of Litigation, National Archives and Records Administration, and Browning Marean of DLA Piper US LLP. Deborah Baron was moderator of a couple of panels which I did with Autonomy at LegalTech in February, and has a steely control over her panels which is simultaneously unobtrusive and firm. She will need all of that with Jason Baron and Browning Marean, neither of whom are short of things to say on these occasions.
The session is about the opportunities and risks affecting lawyers and compliance officers as tightening rules and regulations coincide with the “exponential growth of geographically dispersed information”. Autonomy knows a thing or two about the latter since it was reported this week that IDC has recorded Autonomy as having gained the largest revenue share in the worldwide search and discovery market in 2008 and as being the fastest growing of the leading vendors with 17.6 percent growth from 2007 to 2008.
It was Browning Marean who introduced me to Deborah Baron in the first place. He and I and Master Whitaker (see below) are all taking part in the LexisNexis conference in Singapore the following week. I don’t think IDC keep rankings for the “most-travelled e-discovery speaker”, but if they did, Browning would be the outright winner.
George Socha of Socha Consulting LLC is on a panel called E-Discovery: Why Most Enterprise Implementations Fail to Make the Grade which aims to help compare solutions to fit your needs. George Socha, Browning Marean and I are co-chairs of Thomson Reuters Fifth E-Disclosure Forum in London on 13 November, which is called The Global View and aims to bring to London the topics most relevant to UK-centric lawyers.
Recommind has a panel called Effective document collection and legal hold, discussing regulatory investigation and litigation readiness and how corporate counsel and firms are shifting focus to the left of the EDRM, as well as cross-jurisdictional data privacy concerns and laws. The panel includes Craig Carpenter of Recommind , whom I regularly miss at conferences (such as Brussels last week) because he has always just set off to the next one, but whom I come across on the ediscovery feeds on Twitter. Also on that panel is Stephanie A “Tess” Blair, a litigation partner at Morgan Lewis and leader of the firm’s eData Practice. Denise Backhouse of that department and I were on a panel together in Brussels last week, with data privacy very much on the agenda.
They are followed by Dean Gonsowski of Clearwell Systems and others answering the question How defensible is your e-discovery process? The session description promises an emphasis on collaboration between lawyers, a subject which has had a good airing in the UK in the past year and which will come up again in our judicial panel on Day Two of the Masters Conference.
Collaboration comes up again in a session led by Charles Kellner of Anacomp called Can’t we all just get along? How to enable information co-operation in E-Discovery. I take part in regular discussions with Chuck Kellner in which we discuss, amongst other things, the relationship between professional obligations and the applications and processes which support them. Inter-party co-operation, required in both the US and UK, depends upon having good and timely information about your own data – an example of the short line referred to above between the mechanics of data handling and the accessibility of justice for clients. This session’s description rightly describes the meet-and-confer as an “opportunity” rather than merely a burden or a formality – an opportunity, that is to plan how to do the right thing at a cost proportionate to the issues. This is one of the areas in which the UK rules (if not yet the practice) are strong, and Chuck Kellner is passionate about it in our conversations.
Chuck Kellner turns up again in a later panel sponsored by Nuix called Bridging the Gap between Forensics and Native Review. Nuix is becoming ubiquitous in data collection companies and as team-mate to review applications – Anacomp recently announced an agreement with Nuix to handle collection and native review in Anacomp’s document review platform CaseLogistix.
The subject of international disclosure and privacy recurs in a session whose panelists include Conor Crowley who, like me, is contributing to an international section in the second edition of the LexisNexis book on digital evidence. Topics to be covered in the session include the recent paper by the French Data Protection Authority which I wrote about recently, as well as the Sedona Conference Framework for Analysis of Cross-Border Discovery Conflicts and the Article 29 Working Party. No subject causes more concern to those US lawyers whose work involves EU-based data; no subject is more misunderstood.
The first day ends with a Women Thought Leader Panel called the Art of Negotiating E-Discovery. The speakers in this include Allison Brecher of Marsh McLennan and Shawnna Childress of LECG , the joint authors of the extremely useful EDiscovery Plain and Simple which I am reading at the moment, and Carmen Oveissi Field of Daylight Forensic and Advisory. The moderator is Caitlin Murphy of CT Summation, now returned to the US after a stint in the UK.
Shawnna Childress is co-founder and executive director of Women in e-Discovery, whose London Chapter has just invited me to speak to their next meeting – a prospect more daunting than any of the other sessions I am involved in between now and then. Women, on the whole, are rather better than men at the art of negotiating anything, so it will be good to hear what this panel has to say.
The second day kicks off, as last year, with Judge Facciola’s Keynote Address. This one is entitled “O Brave New World that has such Creatures in it;” Competence, Lawyers, Judges and the New World they Inhabit. There is a nice ambiguity about the phrase “Brave New World” – its originator, Miranda in Shakespeare’s The Tempest, played it straight and intended to convey admiring wonder; Aldous Huxley had an ironic purpose in giving that name to his dystopian novel. We will have to wait and see what Judge Facciola has in mind.
David Cowen of industry recruiters The Cowen Group is one of the panelists considering The challenge of bringing electronic discovery inside the corporation. David Cowen has turned up in these pages before, predicting that the industry’s next imminent problem will be a shortage of people with project management skills, leading to a renewed battle for the available talent between suppliers, law firms and corporations. The results of the Cowen Group’s Q3 2009 AmLaw Survey will doubtless come up in the discussion.
Dan Regard of Intelligent Discovery Solutions and John Rosenthal of Winston & Strawn are amongst those discussing structured data, with the warning that ESI requests are increasingly including it. Not the least of the implications is the problem of producing it efficiently and economically.
Also on Day 2 we have a reprise of the US and UK judicial panel on e-discovery which we ran in London at the IQPC conference in May. Moderated by Patrick Burke of Guidance Software, the panel comprises US Magistrate Judge John M Facciola, two English judges, Senior Master Steven Whitaker and His Honour Judge Simon Brown QC, and me. Judge Grimm, who appeared on the London panel, cannot be with us in Washington, but Judge Facciola will more than hold his own in the face of the UK team. I suppose I could adopt a trans-Atlantic position if necessary, but our experience in London was that we found much commonality of principle, even if the practice and the actual rules are different.
This panel stimulated a lot of discussion in London. Its purpose, so far as I was concerned, was to break down the view held by many UK lawyers that e-Disclosure (as we call it) is an expensive game best left to aggressive Americans. Judge Grimm and Judge Facciola are the leading exponents in the US of thoughtful, cooperative and competent discovery and they amply demonstrated this in London. The aim in running the same panel in Washington is to demonstrate that the UK rules and practice have something to bring to US thinking.
Judge Facciola appears again, with former US Magistrate Judge Ronald Hedges and others, on a panel session on Ethical Issues for Attorneys in Electronic Discovery, which considers collaboration, competence and the allocation of responsibility for search.
I have picked out these sessions, as I say, on the arbitrary basis that the panels include people I know. The others are no less interesting. It should be a thought-provoking conference.