The British invade Washington again, this time to talk and learn, not burn

To say that electronic discovery is international connotes more than the cross-border ramifications of multi-jurisdictional litigation. There is commonality in the problems, the rules and the solutions, to say nothing of the implications for law firms of new ways of working. The Masters Conference was an opportunity to explore many of them.

My ambition to report on the Masters Conference in Washington before reaching the LexisNexis e-discovery conference in Singapore was defeated by various things – only so many hours in the day for one thing, and no power sockets on the planes. As I begin writing this, it is 4.00am in Singapore a week later and the conference here has been and gone.

It was comforting to get a message from Browning Marean of DLA shortly after my arrival in Washington. It read “We have forgiven England for their extensive urban renewal efforts in Washington in 1814”. We do not teach our own history in English schools any more, let alone anyone else’s, so it may be helpful to know that a British invasion force attacked the fledgling United States in that year and burnt the White House down. Our Prime Minister, Gordon Brown, was similarly unwelcome when he was in town recently trying to catch President Obama for a photo-op, like a coelacanth trying to stalk a leopard; perhaps fortunately for our national pride, there were no cameras present when Brown finally cornered the President in a hotel kitchen after five rebuffs. I can’t think what Security was playing at to let that happen.

If British soldiers and politicians are not made welcome in Washington, the same is not true of judges. Senior Master Whitaker and HHJ Simon Brown QC were in town for a return match, re-running at the Masters Conference the US-UK judicial panel which I put together in London in May. I will write separately both about that, and about US Magistrate Judge John Facciola’s keynote speech. This post is about the context, the Masters Conference itself and the few days in DC. The aim, as always, is to give a flavour of these events. I go because my role is to sit at the junction between suppliers, judges, lawyers and their clients, and all are to be found at these conferences.

The Masters Conference has an expressly educative role. It was established by Robert Childress of Wave Software and the level of debate and discussion is higher than at some other conferences. That connotes no exclusivity – the subjects are practical, the delegates friendly, the organisers welcoming, and anyone new to the subject of electronic discovery would feel at home here.

Masters Conference at the Reagan Building

Masters Conference at the Reagan Building

It has been a tough year for conference organisers as for others in budgetary areas which are seen as voluntary and which easily fall victim to undiscriminating expense cuts. The Masters Conference Director, Sasha Hefler, approaches it as if it were a personal crusade to sign up sponsors and attract delegates. It would be easy to under-estimate what is involved in this: there is a kind of iterative relationship between the three legs on which a conference stands – sponsors, speakers and delegates – in that sponsors will only come for the right sort of delegates, the delegates come for the programme, and the speakers cannot be confirmed until the sponsorship is in place. Sasha does not just sit in the office working the phones – I saw her at CEIC in Orlando in May and at ILTA in Washington in August and she was doubtless at other places in between, making the personal connections, eyeing up speakers and subjects and staying close to prospective sponsors. That plus Marilyn Gladden’s efficient organisation and Robert Childress’s energetic multi-tasking – one minute engaged in high-level debate, the next putting out the tea plates before taking the photographs – all help make it work. It is rumoured that Sasha has just taken a post at an e-discovery supplier. I wish her well.

The CapitolI arrived a couple of days early, enticed by the prospect of staying at the Willard Hotel and of seeing something of Washington before the crowds arrived. Roughly 40% of my readers are from the US, and it is good to try and get the feel for the place rather than merely jump in for conferences and race out again. Part of what I do is to try and look at the UK from a US perspective – not a pretty sight just now, as I have covered in a separate article British liberties viewed from the Land of the Free on some of the political and cultural aspects which seem even uglier from abroad than they do at home. As we rise in importance as a market for eDiscovery products and services (as I think we do, not least for our position in Europe) so we look rather insignificant politically, exemplified by Gordon Brown’s demeaning pursuit of President Obama round the kitchen bins of Washington.

Lobby at the WillardThe lobby at the Willard makes a rather grand office, but is not much good for concentrating in when a conference is about to begin – I had barely started typing when Shawnna Childress, joint author of eDiscovery Plain and Simple came by, then Deborah Baron of Autonomy, then Browning Marean of DLA Piper, then Simon Brown (HHJ Simon Brown QC in private life) and his wife Kathy. Kathy Brown is a keen gardener (does that understate it a bit? – see Kathy Brown’s Garden)  and had come to visit the Dumbarton Oaks Research Library and Collection and to see the Fall up towards Boston. Nigel Murray of Trilantic arrived during dinner.

The first event in the Masters Conference calendar is a welcoming party hosted by Dan Regard of iDiscovery Solutions at his rather fine house in central Washington. Dan may be the only other person in the world apart from me whose biography makes reference to being both a programmer and a lawyer (don’t all write in and tell me that the world is full of programming lawyers and legally-qualified programmers). These parties are worth crossing the ocean for, not just for the food and the company but the climb up several stories to catch the view from the roof. One of the first people I met there, at last, was Gabe Acevedo whose Gabe’s Guide to the eDiscovery Universe and TweetDiscovery have become indispensable resources on eDiscovery matters.

Nigel Murray then hosted an excellent dinner – Browning Marean, Simon and Kathy Brown, Deborah Baron and me. Poor Mrs Brown, you might say, stuck amongst all these people whose common ground lies in electronic discovery. It turns out that she blogs with the best of us, sees a value in Twitter for her gardening connections, and was well able to hold her own – not, I have to say, that discovery was the sole topic of conversation at Al Tiramisu, one of those restaurants where the food provides a talking point and not merely fuel.

Browning Marean and Deborah Baron

Browning Marean and Deborah Baron

What were we there for? Oh yes, a conference. The tracks listing speaks for itself. It is dangerous going out to dinner with Deborah Baron, I discovered; one of her star speakers for the next day could not attend, and she turned to the nearest person and asked if he would stand in for Jason Baron. So it was that I found myself on the platform for the first session of the day with Steven Bennett of Jones Day, Mike Leonard of Womble Carlyle Sandridge and Rice and Browning Marean of DLA Piper, with Deborah as moderator. I quite like that actually – all the fun of doing the session and no time to prepare. I have a note of what Jason Baron was planning to say, which I will publish separately.

We will perhaps gloss over Nigel Murray’s explanation to Mike Leonard, later in the day in the Willard bar, as to the significance of Wombles in UK culture. A firm which has Winston the bulldog strolling across the top of its home page is obviously one which is not too up itself anyway.

It is often hard to choose between competing parallel tracks at these conferences. Simon Brown and I had tossed up between one on international discovery and privacy, and one called Can’t We All Just Get Along? How to Enable Information Cooperation in E-Discovery led by Chuck Kellner, Vice President of E-Discovery Consulting at Anacomp, owners of document review platform CaseLogistix.  I had had an immersion in EU privacy in Brussels the previous week, so we went to hear about co-operation, as being more relevant to a case managing judge who had delivered an important new judgment on that subject, Earles v Barclays Bank (see Costs penalty for non-compliance with e-Disclosure obligations) a few days earlier. It was worth going, not just for Chuck’s wise words but for the printed agenda which could serve as a check-list for Judge Brown when reviewing whether parties have done all they might do to bring the documentary evidence into court as efficiently as possible and in compliance with the rules.

Simon Brown and I were cornered by a video team from LegalQB who sat us down in front of a camera and commanded us to speak. We did 16 minutes apparently, before appearing to draw breath. Given notice of such a thing, I would normally at least scribble down some headings, but perhaps extempore is better – it certainly saves time, anyway. Talking of saving time, there might come a year when I have time to complete LegalQB’s registration process, complete with password and all that stuff, but it won’t be this year, even to see myself on video. Later, Kina Kim of PivotalDiscovery asked us to do another one. Lest anyone should think from this or from Kina’s earlier videos (see Big reception for Marean-Dale video) that I actually like doing this or think I am any good at it, I don’t, but it is one of the drawbacks to a commitment to take any platform going that I say Yes to almost anything (there are limits to this, in fact, before you pile in with esoteric offers, and the Mothers Union in Dunny-on-the-Wold will have to manage without me).

Caitlin Murphy

Caitlin Murphy

The formal part of Day One closed with a Women Thought Leader Panel:  The Art of Negotiating E-Discovery, led by Caitlin Murphy of CT Summation with a panel including Shawnna Childress of LECG. I had, part-drafted in my head, an article (see British liberties viewed from the Land of the Free) exploring, amongst other things, why British politics attracts no talented women. Even if you accept that the ability to lie more convincingly than the next man or woman is the prime qualification for success in politics, why are British politicians so incompetent, so unable to manage anything, so blind to the obvious consequences of their acts or failure to act? One answer is that none of them has ever had to do a proper job which involves these skills. A cabinet comprising the ten best-known women in ediscovery would sort the place out. And before you jump up and accuse me of some breach of political correctness, it was not me who set up a group called Women in eDiscovery, and I am immune anyway to the creeping paralysis of thought which, in Britain, has made people too timorous to speak on any subject involving the similarities and differences between people. Go read the Guardian if you like views filtered by political correctness.   The point of Women in eDiscovery is to show that there are no barriers to entry in this profession, not to whine about them.

Shawnna Childress

Shawnna Childress

I had to leave before the end of this session and so missed the fight which apparently broke out towards the end – “strong expressions of conflicting views” would probably be a better way of describing it, but since no-one could give a coherent account, I am not sure what happened. It may have been something to do with the distinction between a geek and a nerd which came up earlier. I wish sometimes that we could get some competing views going at other sessions – respectful silence and a polite clap is better than having things thrown at you, I suppose, but there is a middle course somewhere which would  bring out the differences of opinion which I am sure actually exist. This panel certainly got a good debate going.

Judge Facciola

Judge Facciola

The main events, so far as I was concerned, came on Day 2. That opened with US Magistrate Judge John Facciola’s keynote address, in which he discussed the right, and indeed the duty, of judges to sanction lawyers and their clients in appropriate circumstances. The widespread impression is that sanctions are handed out left, right and centre for the most trivial offences. Judge Facciola’s purpose was to put sanctions into context and to stress, as he put it, that judges do not wake up every morning wondering “Who can I sanction today?”. In the afternoon, we had a rerun of the judicial panel first seen at IQPC’s conference in London in May. Patrick Burke of Guidance Software was again the moderator. Chief US Magistrate Judge Paul Grimm was not with us this time, but the rest of the London panel, Judge Facciola from the US, with Senior Master Whitaker, HHJ Simon Brown QC and me flying the flag for the UK, were there. Patrick Burke has already written about both the keynote address and the judicial panel on Guidance Software’s new ediscovery blog. I will do my own report in due course, but there is enough to cover at the moment without going over ground which Patrick has already covered.

Between these sessions, Judge Facciola kindly took us – Master Whitaker, Simon Brown, Pat Burke and me – to lunch at his court. The conversation, as ever in that company, was stimulating and we could have saved ourselves the subsequent appearance on-stage by recording the lunchtime conversation and playing it back.

Valuable and interesting as all these sessions were, the best parts for me, as always, were the conversations in between. We may have been in the Ronald Reagan Building in Washington DC, USA, but much of what was discussed has relevance in the courts of England and Wales, in Brussels where some of us had been the previous week, in Singapore where we moved to the following week, and anywhere in any jurisdiction where documents must be collected for litigation or regulatory purposes. It is not just the court rules, the problems and the technology solutions which are relevant everywhere. The post-recessionary tide will wash away old practices and whole law firms as it begins to dawn on clients that they do not necessarily need a lawyer to stand between them and the primary processes of discovery. It is not merely the incompetent who will be washed away – merely knowing the rules is a good start, but that is something which the clients take for granted, not a qualification in itself for handling litigation.

The risk is not merely that the firm next door will get the work instead of you, nor even that the clients may take the work in-house or outsource it themselves, and it is not just the mechanics of discovery which have become portable. Other jurisdictions may provide not just cheaper places to do the work, but more efficient and cheaper places to litigate. The mechanics are merely a means to an end, It was in this context that I was back at Heathrow four days later, en route for Singapore.


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 CaseLogistix, Court Rules, CPR, Discovery, E-Discovery Suppliers, eDisclosure, eDisclosure Conferences, eDiscovery, Electronic disclosure, FRCP, Guidance Software, Judges, Litigation Support, Masters Conference, Summation, Trilantic. Bookmark the permalink.

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