The three-day IQPC Information Retention and eDisclosure Management Summit is over for another year. It is the biggest and best conference in the London calendar and one which genuinely aspires to do better each year. Everyone I spoke to seemed to think that it had achieved that aspiration.
I have to be careful here. I am on its advisory board and was involved in some of the planning going back to a late-night session in a Brussels hotel bar last October. I also clocked up 8 hours on its platforms this year, so I am perhaps not wholly impartial. It has the greatest concentration of people interested in e-disclosure, from judges to suppliers to lawyers to clients, and is the place to be for someone whose job involves carrying information between these players. My main interest lies in talking to people, which inevitably means that I attend few sessions beyond those in which I am involved. The loss is mine – there was a packed programme of important and interesting subjects and anyone with a stake in electronic disclosure would have benefitted from being there.
Monday was a workshop day. I took part in a three-hour session run by Legal Inc called Ready for the Regulator: the importance of equality of arms. It was led by Vince Neicho of Allen and Overy who, characteristically, had left nothing to chance in our preparation. Bill Sillett, an enforcement officer at the Financial Services Authority, had provided a scenario which was no less plausible for involving almost every aspect of an FSA investigation – what started as an apparently routine matter grew into a multi-jurisdictional one with criminal implications, SEC involvement, and a potential conflict between the company and some of its employees. Antony Montague, Associate General Counsel at McGraw Hill Companies, Matthew Davis, Litigation Support Lawyer at Hogan Lovells, Peter Cladouhos, Practice Support Electronic Discovery Consultant at Paul, Hastings, Janofsky & Walker LLP, and I brought our respective professional inputs to this scenario, with Vince as an able narrator and an audience which caught the spirit of the thing and joined in. If we ran out of time before we run out of script, that was because the audience was sufficiently involved to take us down useful byways. The main take-away for me was the confirmation that the FSA looks well on those who are both willing and able to co-operate at a data level as well as at a higher factual level.
That was my only involvement at IQPC on Monday, but I had another engagement, a roundtable lunch in Soho to launch InfoRiskAwareness. I will write separately about this interesting venture which involves a number of industry players, including Recommind and the e-Disclosure information Project . My role at the roundtable was to give an update on the UK electronic disclosure scene which, just now, offers risks both financial and reputational which are not to be ignored. As I say, I will come back to this.
Then I went to the Grange St Paul’s Hotel to meet Chilli IQ who were setting up their Legal IT Leaders Think Tank. Master Whitaker and I are speaking at their Information Management and EDiscovery Summit in Sydney on 9 and 10 June, so I wanted to say hello anyway. More urgently, however, Browning Marean of DLA Piper US , who was supposed to be speaking with Master Whitaker on the following day, had had to call off his flight because of the ash. I had turned down an invitation to speak at the Think Tank because of the conflict with IQPC. Fortunately, plans for me to rush between the two to stand in for Browning were overtaken by an arrangement for him to appear via Skype. I gather that the double-act between Master Whitaker and Browning’s disembodied voice worked well. Perhaps this is the future of conferencing – I hope not, since (as appears from what I said above) there is more to conferences than the transmission of knowledge.
Dinners, for example – you cannot go out to dinner with a disembodied voice. Patrick Zeller and Patrick Burke of Guidance Software took a group of us out to dinner at Rules on Monday night. The guests included Chief US Magistrate Judge Paul Grimm, US Magistrate Judge John Facciola and US Magistrate Judge Elizabeth LaPorte, which ensured a stimulating discussion whose subjects included, but were far from limited to, eDiscovery.
I was staying in the Grange St Paul’s Hotel, and dropped into the opening of the Chilli IQ Think Tank on my way out. The delegates included a higher proportion of law firm IT people than we get at e-disclosure conferences, presumably reflecting the fact that relatively little e-disclosure data is hosted in-house and so is not the responsibility of IT departments. I am not clear whether they have abdicated responsibility in this area or whether the lawyers and e-disclosure providers simply talk over their heads. Would we do well to re-engage with IT departments?
I got back to IQPC in time to hear part of a panel introduced by Morgan Sheehy of Nuix and moderated by Debra Logan of Gartner . The panel comprised Keith Foggon, Digital Evidence Unit Manager at the FSA, Senior Master Whitaker, Vince Neicho of Allen and Overy and Greg Wildisen of Epiq Systems . There are differences between civil litigation and a regulatory investigation, but there are many similarities, not least in the need to know very quickly what data exists which may be relevant – a Nuix strength. It may not be optional for the company to undertake this exercise, but cost is no less important when (as we heard in our workshop the previous day) the expense of compliance might break a company. The mix of skills on this panel was invaluable.
The main event, so far as I was concerned, was the judicial panel on Wednesday. Patrick Burke of Guidance Software was the moderator and my role, as last year, was to explain briefly the extent and purpose of the increasing international exchange of ideas about e-discovery. I said that Sir Rupert Jackson had gone round the world as part of the fact-finding which underlay his report. Judge Brown, Master Whitaker and I had between us been to Hong Kong, Singapore and Australia as well as in the US, and Master Whitaker and I are off again shortly. The purpose is to listen as well as to speak , not least because Australia and Singapore had recently introduced new ediscovery practice directions. There is a much better exchange of information than we had two years ago.
Lord Justice Jackson took us through the parts of his report which related to disclosure generally as well as to e-disclosure, pausing on the way to give thanks to Vince Neicho, whom he spotted in the audience, for his contribution to these sections . He talked about his proposed new rule with its “menu option” aimed at encouraging judges and parties to consider carefully what was the right approach for the case, from no disclosure to full pre-1999 Peruvian Guano discovery where that was appropriate. He reiterated his endorsement of Senior Master Whitaker’s practice direction and questionnaire. He made it clear that his remit was “merely” to recommend and that only half a day a week of his time was available to follow up his recommendations. The quotation marks round “merely” are mine, reflecting the admiration shown by the US judges for the ground covered by Sir Rupert in such a short time with minimal staff and support. How much of it will happen, and in what time-frame? Sir Rupert could make no predictions having regard to the number and diversity of the parties involved in implementation of his report’s many headings. He thought it likely, however, that the practice direction and questionnaire would be incorporated into the rules.
Senior Master Whitaker was willing to predict that the PD and questionnaire would, with minor modifications, become part of the rules by October. He drew attention to the fact that the questionnaire was already publicly available annexed to his own judgment in Goodale v the Ministry of Justice. It had proved useful to the defendants in that case and could be used by agreement or order where that was appropriate. The practice direction aimed to remedy the obscurity of the existing PD to Part 31 CPR which remained unknown to practitioners and judges alike more than five years after it became part of the rules, despite the role which it played in Digicel v Cable & Wireless.
His Honour Judge Simon Brown’s focus was on his own judgment in Earles v Barclay’s Bank which drew attention to the duties of both the parties and their lawyers. The central point was not compliance with the rules, important though that was, but the actual loss of time and cost which flowed from the failures. There was not time for him to explore the question whether the Earles judgment extended the duties of parties as to preservation of documents. There is certainly an increased expectation on the part of judges that companies will be able to produce the documentary evidence which allows a fact-finding judge to reach a conclusion in the face of competing recollections from the distant past. That falls short of a settled doctrine of preservation, but companies are on notice that a cavalier approach to disclosure is not acceptable.
Judge Grimm showed us where our debate about preservation may go, talking about the Pension Committee and Rimkus decisions and their implications for the American bar in the context of legal holds. Those unfamiliar with the points at issue here may find it helpful to read Dueling Opinions: Scheindlin’s Pension Committee vs. Rosenthal’s Rimkus. Judge Scheindlin’s questions:
Which files were searched, how the search was conducted, who was asked to search, what they were told, and the extent of a supervision
… find echoes in the questions raised by the judge (and still outstanding) in respect of Ofsted’s late discovery of clearly relevant documents in the Shoesmith litigation. Questions as to the degree of culpability – the graded steps from negligence to gross negligence to wilfulness to bad faith – have always been part of English law, but we watch with bemusement (or, at least, I do) at the US attempts to formalise these, each grade with its appropriate level of punishment.
Judge Facciola took up this theme with his report from the recent Duke Conference at which an attempt – largely successful – was made to set down the elements of a preservation rule. This would clarify the general and specific triggers which would identify the point in time when the obligation to preserve accrues, define the scope of the duty (that is, subject matter, types of data, the form of preserved data and so on), and has provisions as to duration, the ongoing duty and litigation hold as well as the consequences of failing to fulfil these responsibilities.
Everything I have heard or read on this subject leaves me fervently hoping that we in the UK will not reach the point where such codification of duties and punishments becomes necessary, just as I hope that we will not go down the route of attempting to define too closely what makes a search defensible. These are things best left to the discretion of the judge – assuming, that is, a minimum level of knowledge and competence on the part of judges. I had said half-jokingly in my introduction that we had trebled the number of judges who knew about electronic disclosure. Thinking about it now, perhaps we should avoid putting all three of them on the same platform again lest some disaster should wipe them all out at once.
I exaggerate, a little. The experience and intellect of most judges makes them well able to grasp ideas from a standing start, as other judgments have shown. There is more to the management of electronic disclosure, however, than the ability to grasp its implications for the case in front of you. We may want to avoid the worst excesses of US discovery, but we need to know how it got where it has got to.
The bottom line in these debates about preservation and other duties owed to the court is the level of sanctions applicable where there has been a failure. Judge LaPorte took us through the recent developments, not least the penalties imposed on those involved in the Qualcomm case. It is clearly right that some people are deprived of their professional qualifications on top of a financial penalty, but the factors become hard to weigh once one gets beyond recompense to the victim. There is an interplay between compensation, punishment, and the prevention of future wrongs by taking the perpetrators out of the field. There are no ready answers, as Judge LaPorte made clear, but her explanation clarified what the issues and arguments are.
It must have been tempting for Patrick Burke, as moderator, to let this platform full of lively and informed speakers take the rest of the morning. He resisted, and brought us to a close on time – fielding complaints as a result that we should have gone on. The rumour, as I reported yesterday, was that he panel “blew the doors off the joint”. It was a privilege to be a part of it.
Later that day, we had a two-hour session for Women in EDiscovery. There is an object lesson here for those who like to come up with bright ideas – make sure that your bright idea includes delegation of its execution to somebody else. We had an IQPC planning lunch some months ago and, as it happened, an e-mail came from Simon Brown during the lunch about a proposed Women in EDiscovery event in Birmingham at the end of May. Muggins here suggested that we recycled (or, strictly, pre-cycled) the preparations for that into a session at IQPC. I am not sure when it dawned on me that I was actually running this event – about 90 minutes before it started, I think. A premonition about this had inspired me to make sure that we had some authoritative speakers on hand with useful things to say.
In the event, it ran on rails. The main speakers were Shawnna Childress of LECG, co-founder of Women in EDiscovery, and Alison Stanton of Hogan Lovells in Washington who, with an introduction from Simon Brown, who had been much taken with a WiE session he saw at last year’s Masters Conference (aarrgghh – going to the Masters Conference site to pick up its url, I find that a video of Simon and me is on its home page), got us well launched, with me acting as moderator. We took advantage of the presence of Judge Elizabeth LaPorte to give us a view from the US bench. Deborah Blaxell of Epiq Systems, Lisa Burton of Legal Inc and Nigel Murray of Trilantic contributed a UK supplier perspective. We got some good audience interaction, and I elected to cut off the prepared presentations in favour of a more spontaneous approach, which seemed to work well.
Judge Grimm and Judge Facciola joined the audience, and their contributions stimulated much of the discussion. I particularly liked Judge Grimm’s observations about sampling – one set of considerations arises when taking a random sample from a large document collection; rather different considerations arise if a jar contains 100 sweets of which three are poisoned.
This session was the better for being only loosely structured. If asked what is the rationale for a women’s group, I have two answers, one pragmatic and one a matter of observation. The pragmatic one is that Women in EDiscovery has a secretariat and a membership, a lot of goodwill, and the ability to organise a group session; the observational one is that, for whatever reason (and I do not much care what the reason is) women are less forthcoming in a mixed group, and we got a good flow of discussion from this gathering. By the end of the day, incidentally, Jonathan Maas of Ernst & Young had set up a LinkedIn group called Men in eDiscovery
And so to the last session. Last year, I wrote a short play for which Judge Facciola and Judge Grimm took the part of the fierce Judge Grimmfach, who made short work of various half-baked submissions made by those appearing before him. Last Saturday dawned without my having written this year’s script, but it more or less wrote itself. As I said in my introduction:
Some of the situations described in recent judgments absolutely defy parody anyway. I would never have thought of inventing a scenario in which disclosable documents lay unnoticed in a clearly-labelled folder in My Documents, and the idea that the same party sent round instructions to delete documents is too incredible for fiction. We have yet to discover whether the OFT gave disclosure of their corrupted mail file or simply decided to keep it to themselves. A government department really did say blandly that it did not intend to disclose electronic documents, and another one actually did deny several times that it had any documents before confessing that it had too many to cope with.
This year, I introduced some dialogue with clients, with Master Whitaker gamely playing a partner in the firm of Tardy Sloth & Billing and Simon Brown as a partner in Somnolence & Yawn, Solicitors.
You get the flavour of it from this passage:
Mr Brown, are you familiar with the Practice Direction to Part 31?
Yes, My Lord, that is, er, no
Perhaps you would run your eye down Paragraph 2A.4. What does it say?
Well, my Lord, it sets out the factors that may be relevant in deciding the reasonableness of a search for electronic documents.
Does one of them say “if you haven’t got a clue what you are talking about, you are exempt from having to consider electronic documents”?
No, my Lord. Not in so many words anyway.
Mr Brown’s client was made to complete an ESI questionnaire. Penelope Pusher from a regulator called OFTWRONG had found documents at an embarrassingly late stage, including 17 prior drafts of a report which moved from praise to outright condemnation of the paperclip supplier who had brought the action. Pen Pusher’s documents also included a memo urging the deletion of all documents which included the word “paperclips”. Anyone familiar with recent UK e-disclosure cases will get the idea.
I am pleased to see from the photographs that my cast appeared to be enjoying itself, although Steven Whitaker was heard to wonder at one point as to how his agent had let him in for this.
The evening and the Summit ended in the beautiful gardens of the inner Temple where a group of us gathered for a drink at Simon Brown’s invitation.
This was an excellent conference with a mixture of learning and leisure matching any I have been to. The IQPC staff worked extremely hard and it showed. I look forward to next year.