The night before I left for IQPC’s Corporate Counsel Exchange in Brussels, I gave a short talk at an event organised by 7Safe in London. I will write about that separately, but its theme was that we are seeing a greater rate of change in the UK e-Disclosure world than at any time hitherto, thanks to a combination of procedural initiatives and salutary cases. Change is very much in the air in other areas as well – when I went away, the Liberal Democrats were a joke with no hope of a role in government; by the time I came back, they were a joke with a serious prospect of a role in government. The expression “change is in the air” acquired additional resonance when another minority entity thought to be capable of zero impact managed to bring the entire world to a halt. As the current joke has it, it is cash we want from Iceland, not ash. My wife and I came within a hair’s breadth of falling victim to the latter. Mary Ann, sensibly, took it for granted that we would travel by Eurostar and, in her role as my travel department, and in that no-nonsense way which women have, was poised to make the booking. Wait, said I, in my male, have-we-considered-every-option? way, we should check out the flights. Fortunately, anything that BA had to offer was both more expensive and more inconvenient than the train, even before Iceland intervened.
I was busy down to the moment of leaving home, and had not begun to focus on the implications of the volcano. I assumed that the long queues at the St Pancras Eurostar terminal comprised people keen to get away before the Lib Dems took power (if you think that New Labour loves interfering in our lives, wait till you see what inherent contradictions lie in the two words which make up the name “Liberal Democrat”). Uniquely amongst British public transport ventures, Eurostar just works. Uniquely also, the St Pancras terminal combines aesthetic pleasure with practicality – c.f. the Brussels terminal which has been apparently been designed deliberately to be as ugly and inconvenient as possible, inside and out. Our choice of hotel was another example of the triumph of female instinct over the curious male need to weigh every option. It took Mary Ann about ten minutes to light on the Stanhope Hotel, and a further two hours, at my insistence, for us to examine every alternative and read all the reviews before booking – at the Stanhope.
Incidentally, I just loved the notice on the hotel website offering a “10% kickback on conferences”. I am sure that “discount” was the word they were after, but the subconscious message sent out by using “kickback” just yards from the heart of the EU’s Parliament and bureaucratic centre, was perfect.
There is an e-Disclosure point here (in making choices, I mean, not doing business with EU departments – I will come on to that below): earlier in the week, I had been discussing with a law firm how to choose a supplier of litigation software and services. I am inhibited, for obvious reasons, from making recommendations, but I do take firms through the list of players in the market and describe briefly what each of them does and what differentiates one from the other. In contrast to my own approach to making travel arrangements (or anything else where there are choices) I am not against the idea of choosing a supplier by gut feel and instinct rather than by exhaustive analysis of every detail. Perhaps Mrs Dale should open a litigation system selection practice, encouraging firms to follow their noses rather than constructing complex comparative spreadsheets. The potential for getting it wrong is less than the possibility of ending up in a ghastly hotel – the Stanhope was just fine and I would go back.
I will spare you (at least for now) my account of our two very pleasant days in Brussels, adding only by way of travelogue that the Conrad, the conference hotel, which we moved to when they had space for us, proved to be both a perfect conference venue and a comfortable and attentive place to stay. One last tip for travellers before I move on to the event itself: I rather mocked Jonathan Maas of Ernst & Young for the large trunk which he took to New York which, he said, contained every cable and connector which he might need for five days. I regretted that when I realised that I had set off without my laptop’s mains connector which, since I charge my BlackBerry from my laptop, converted me from road-warrior to Stone Age Man. In theory, I could run my entire business from anywhere in the world with just a laptop, a BlackBerry and a packet of cigarettes – as long as I remember the mains lead and a lighter.
IQPC’s London Information Retention and e-Disclosure Management Summit is one of the best in the calendar, and I enjoyed also their Brussels e-Disclosure event last year. The Corporate Counsel Exchange events are run by a separate division, and I had heard good things from both delegates and sponsors about the one which IQPC Exchange ran at The Hague recently. Although there are platform sessions, these are short and very focused, serving as the context and hooks for the meetings which are the primary purpose of these events. Most conferences obviously allow time for providers of software and services to meet up with those who are interested in what they have to offer, but the Exchanges are largely built around carefully targeted meetings. The providers have simple booths – just chairs each side of a table, without the elaborate scenery which you find elsewhere – and IQPC Exchange marry up those with services to offer with those who have expressed an interest in services of that type. Both sides can therefore have back-to-back meetings without the time-consuming preliminaries. This extremely efficient use of time is complemented by the opportunities for more random meetings and for more extensive discussions in the breaks, at the meals and drinks parties, and in the bar. This is not a substitute for the big platform-orientated conferences whose primary function is pushing out information, but the more intimate scale has its advantages. You also meet (how can I put this?) a better class of delegate at these rather more selective events – as their name implies, most of those present are corporate counsel and, as the drivers move on from pure costs-saving (important though that remains) and on to better ways of meeting compliance and other business objectives, this concentration on and of corporate counsel is extremely valuable for all concerned.
One aspect of this which is easily overlooked is the opportunity for the in-house lawyers to mix with their peers and with those who share their requirements and their objectives. One of Richard Susskind’s observations on business change is that there are many more opportunities now for corporate counsel to spread ideas and information directly between themselves – a peer-to-peer, horizontal information-flow via social media and other forms of electronic communication as well as at events like this. The context in which Susskind puts it is the risk that the external advisers get left out of the loop as the corporations come to realise that much of what they need can be provided by third parties without the intermediate lawyerly layer. An event of this kind is a good example.
My primary interest at these conferences is not so much the formal sessions as the ad hoc conversations. It is where I get much of my information, and is as powerful a way of influencing people as my writing and speaking are. Two of the sessions which I attended, however, illustrated perfectly my point about horizontal transfers of views and knowledge. Andrew Szczech of Kroll OnTrack hosted something which IQPC call a “BrainWeave” at which a scenario was put forward based on a single e-mail. The detail does not matter; a group of corporate counsel was asked for a reaction to something which obviously struck a chord with many of them. The session lasted only 30 minutes, but ideas poured out of the group; even the best and most experienced of them will have taken something away from a short session to which they, rather than the moderator, were the main contributors. I also went to a Round Table Discussion – tables labeled, for example, Compliance, Litigation, Governance and similar broad terms at which a facilitator kick-started a discussion. I chose Litigation and found myself having a crash course in privilege as it differs between in-house and external counsel in EU Commission matters. If that is slightly off my patch, it is something one ought to know about and, again, the interchange between people who deal with matters of privilege in their daily work was more informative than any reading which I am ever likely to have time for.
The only platform event which I attended was run by Epiq Systems. International Sales Director Mike Brown (shown left) introduced a case study called Your company has just been raided and an investigation is underway. Do you have an effective strategy to focus your resources on only the most relevant documents? The other participants were Epiq’s International Managing Director Greg Wildisen and Vince Neicho, Litigation Support Expert at Allen & Overy. Their real-life example involved the use of IQ Review, Epiq’s implementation of Equivio->Relevance. Those on the receiving end of a dawn raid have no time to prepare, and a tight timescale. In that context more than any other, the imperative is to identify the relevant from the irrelevant documents and to get the relevant documents under the eye of the lawyers as soon as possible. What made their example particularly interesting was that the documents had been dealt with in two batches, one of which used a more conventional approach. Amidst a mass of statistics, the one which caught the eye was that the conventional approach yielded one relevant document every five hours whilst the IQ Review approach turned up one every 17 minutes.
A question was asked about judicial acceptance of such an approach to selecting or discarding documents. So far as the UK is concerned, the favoured approach follows from Lord Justice Jacob’s observation in Nichia v Argos (paragraphs 45 to 56) to the effect that it is not practicable nor proportionate to look under every stone, on Lord Justice Jackson’s observation (paragraph 2.2 on page 365 of his Final Report as to the value of software designed to get quickly and economically to the smallest reasonable review set, on Master Whitaker’s observations to the same effect in Goodale v The Ministry of Justice, and on the fact that human review of everything, even if it were possible, is no less likely to miss things than an automated review. None of this is an argument for a cavalier approach to search; an electronic search, however, quite apart from the ever-increasing accuracy of the tools, offers better opportunities to check the results and to handle omissions (or, indeed, unwanted inclusions) by re-running the search with parameters altered by experience and observation. You cannot do that with manual review (well you can, but you need a big work-force, a lot of time and an infinite budget).
Another point which arose from the session was the discovery on my part that some at least of the EU Commission’s regulatory raids are accomplished by printing two copies of every document in which the regulator is interested. What better illustrates the bullying hypocrisy of the EU, with all its directives requiring the rest of us to be ecologically-sound by diktat? Our old-style filament light bulbs have been banned to save energy and cut emissions at the EU’s command whilst that same organisation prints tens of thousands of pages when an electronic alternative is available. The electronic approach, quite apart from the ecological benefits, would slash the time and expense of dealing with regulatory demands. There is no aspect of personal or business life which is too small for some Eurocrat to see as a career opportunity or personal income supplement, so one must assume that the blind eye turned to this misuse of resources is benefiting some civil servant somewhere.
One of the appreciative delegates observed that the smooth running of the conference must, like the proverbial swan, conceal much agitation hidden below the water. IQPC fielded a large team to make this event work, and their outward calm must have concealed a great deal of behind-the-scenes effort as they coped with the implications of Iceland’s gift to the world. Many of those present had made incredible efforts by train and car to be there but, inevitably, it was physically impossible for some. I was sorry not to see the team from Applied Discovery, none of whom made it to an event of which they were big sponsors – I had to miss their drinks party on Monday night in order to catch my train home, but it must have been galling for them that they could not be there either. Some sessions were cancelled because the speakers were stuck in the US or elsewhere, but IQPC coped well with the last-minute changes to the programme.
I would go again to an event like this and would guess from my many discussions with delegates that they will come back. The approach which matches potential buyers with those with something to offer has application beyond the scope of this particular event – I think it possible, for example, that English lawyers would turn out for a similar match-making occasion which introduced them to a wide range of suppliers of litigation software and services in short, sharp bursts interspersed with platform sessions. It is not, as I said above, an alternative to the high-quality conferences which exist already, but it would complement them.
IQPC are running another event at the same hotel in Brussels on the 16th to 18th May 2010. Called Corporate Compliance Exchange, its subject matter is governance, risk and compliance processes as strategic corporate assets. If any of these subjects affects your business, whether in an EU or a purely national context, then this would be a good fast track to information and understanding. There is another Corporate Counsel Exchange on 24-26 October in the Netherlands.