The purpose of my visit to Hong Kong last week was to speak at the InnoXcell Ediscovery and Digital Forensics Conference on 7 and 8 July. Several of the international brigade of ediscovery speakers joined local lawyers, suppliers and others for two days of intensive but enjoyable talks and panel discussions at the Renaissance Harbour View Hotel.
The best call to arms came not at the conference but at a panel session at Allen & Overy on the day after the conference. A&O associate Jonathan Crompton, winding up the event, invited the audience to look out of the window at the self-evidently thriving commercial centre below. Hong Kong needs to manage electronic discovery, he said, in order to maintain its position as a place to do business. The exhortation somehow meant more when you could see what he was talking about through the glass. I will come back to that event in due course, but I introduce Jonathan Crompton at the top of this article for more than his rhetoric. He is the author, with Aaron Bleasdale of Epiq Systems, of an article called E-discovery: time for Hong Kong to catch up which was published as the cover story in the Hong Kong Lawyer as the conference opened. It set the scene nicely.
The other comment which sticks in the mind came from Singapore’s Senior Assistant Registrar Yeong Zee Kin, who observed that if business people have adapted to the use of electronic documents, then the lawyers and courts could not neglect them. It would be tactless of me to observe that Hong Kong’s loss could be Singapore’s gain if the businesses of the region conclude that the one jurisdiction is more effective in dispute resolution than another. Not all dispute business is portable, but some of it is.
Not everyone, perhaps, will have picked up on my reference to the First Opium War in my earlier post about Hong Kong. I was not suggesting any moral equivalence between the trade in opium and the business of litigation, but I could not resist the other parallels which came to mind. The consequence of Western “persuasion” in 1842 was that China was opened up to international trade. Left to themselves, the authorities (in this case the Quing dynasty) would have resisted both the trade and the new ideas which came with it. I can think of jurisdictions closer to home than Hong Kong where the authorities (in this case the judges) are an unconscious impediment to progress (by “unconscious”, of course, I imply no more than lack of awareness).
This was the theme which ran sotto voce through the conference. The talk may have been of forensics, of rules and of technology, but the underlying concern was how best to serve and attract business by making this aspect of dispute resolution as efficient as possible. The tone was set in the opening session in which Simon Clarke of Allen & Overy in Hong Kong, with Vince Neicho, litigation support manager in A&O’s London office, talked about Civil Justice Reform in Hong Kong and drew parallels with the UK experience. As a member of Senior Master Whitaker’s working party on the UK’s new practice direction and electronic documents questionnaire, Vince was eloquent on the need for judicial management in a climate of co-operation.
Vince Neicho was a member also of a panel moderated by Browning Marean of DLA Piper US whose other member was Scott Nonaka of O’Melveny & Myers. The session title was Implementing early case assessment and costs savings solutions – avoiding pitfalls in ESI collection. Browning’s focus was on the need for an established process and a checklist to make sure in advance that everything is covered, as well as on the ability to demonstrate in retrospect what you did and why you did it. From Vince, we heard that getting on top of the documents was more than merely a formal stage in the proceedings – seeing the key documents early is essential to assess whether you have the evidence needed to bring or defend the proceedings. Scott Nonaka focused on the lawyers’ own business; as clients increasingly seek fixed fees, lawyers need for their own sake to have a strong understanding of the costs implications in order to be able to price the case.
O’Melveny & Myers last turned up in these pages a year or so ago in an article called How can we do this differently? for which I had interviewed O’Melveny’s Richard Goetz. The context was an arrangement which the firm had newly set up with search specialist H5 to offer a joint approach to clients which drew on their respective skill sets. Scott Nonaka referred to this in the context of early assessment and costs mitigation; the arrangement appears to have been a success – just as well, from my point of view, because I have been urging something similar on every law firm I have come across ever since I heard of the H5 arrangement.
John Tredennick, CEO of Catalyst, talked about search technology, and Richard Kershaw, Catalyst’s Asia managing director, gave some case studies. Catalyst has recently established operations in Asia, bringing Richard Kershaw over from his previous work in the region at LECG. Epiq Systems, Kroll OnTrack and Merrill Legal Solutions were the other big conference sponsors. Who, I wonder, will have joined them by this time next year?
There is more to understanding a region than mere business and technology. The ad hoc supper party which formed in a Malay restaurant after the conference first day had the benefit of local knowledge. Richard Kershaw, Damien Adams of Data Management Corporation and Darren Cerasi of I-Analysis Pte Ltd did the ordering. The non-locals were US Magistrate Judge Andrew Peck, John Tredennick, Nigel Murray of Trilantic, my wife Mary Ann and me. I am not sure that I would have ordered any of the things which turned up on our plates – indeed, I am not sure that I would have chosen to eat at somewhere called the Good Luck House, with that hint of random chance about the name – but it was all very good. In eating as in ediscovery, you must rely on local knowledge.
The second day opened with a talk by Singapore’s Senior Assistant Registrar Yeong Zee Kin, who has been the driving force behind Singapore’s electronic discovery practice direction 3/2009. One of the main drivers behind this, he said, was that there are many US companies in Singapore, which has in consequence always had to respond to US discovery requests. Use of the practice direction is optional and many of the arguments before him are about whether it should be used. Much of what he said in his speech turns up also in his judgment in Deutsche Bank AG v Chang Tse Wen which I have written about here. This thinking would be valuable in any jurisdiction; the main message for Hong Kong was that modern volumes do not lend themselves to the traditional way of giving discovery and that a combination of rule changes and the right attitude from practitioners and judges was not merely necessary but urgent.
Dmitri Hubbard of Epiq Systems adopted a light touch in taking us through the effectiveness of review accelerators, that is, the tools available in modern review applications to speed up review and therefore save time and money. The main focus was on Epiq’s IQ Review application which uses Equivio>Relevance to enable fast and informed separation of the relevant from the irrelevant and to prioritise documents. The joy of this application, so far as I am concerned, is the involvement of a senior lawyer in the initial decisions which inform the automated classification which follows. Lawyers, particularly those new to this kind of technology, need that comfort.
My turn came on the second afternoon, when I moderated two panels and took part in a third. The original plan had been for US Magistrate Judge Andrew Peck to talk about US Federal Rules and for me to speak on the UK and the rest of the common law world. I had suggested that we pool the resources available at the conference into panels, which is how I became the moderator of a US panel. There is a symbolic element in this: one of my early conclusions when I started in this game was that we would get nowhere if each jurisdiction operated in its own silo without regard to what was happening in other places; to have a UK moderator for a panel about US rules would have looked distinctly odd two years ago but it seems natural now. In any event, no particular skills are needed to run a panel whose US contributors are Judge Peck and Browning Marean. Senior Master Whitaker’s place on the panel reflects the fact that he has a broader involvement in international ediscovery than any other judge. Panels like this run themselves, and the only real skill lies in the ability to catch the moment when you can politely divert these eminent and eloquent people onto the next question, and in bringing the session to an end on time. The main takeaway from this panel illustrated the universality of the messaging: Judge Peck identified competency, communication, candour and transparency as required components of an ediscovery exercise; these are things which override the specific rules of any jurisdiction and apply everywhere.
We moved straight from that panel into a UK-Everywhere Else panel, with Vince Neicho and Senior Assistant Registrar Yeong Zee Kin supplementing the previous speakers. The jurisdiction which was unrepresented at the conference was Australia which, to my eye, is more advanced in its thinking than it gives itself credit for. Master Whitaker and I were in Sydney recently, and we summarised briefly the developments in Australia. Our 45 minutes flashed by. At the end I asked each of the panellists for a one-sentence message. Browning Marean said that not everything was bad despite the reports of actions ranging from the careless to the grossly incompetent; Judge Peck itemised teamwork and co-operation, and endorsed Browning’s view that there was good as well as bad in the international approaches to ediscovery; Master Whitaker urged lawyers to involve their clients and opponents in arriving at an intelligent and informed view; Vince Neicho repeated Lord Justice Jackson’s view that ediscovery is inevitable, adding that the worst you can do is nothing; Yeong Zee Kin repeated what he had said earlier to the effect that men of business had adapted to the electronic world and that lawyers and judges must keep up.
The closing panel was moderated by David Shonka, Principal Deputy General Counsel at the Federal Trade Commission. Its main theme was cross-border ediscovery. Judge Peck and I took slightly different views (it would be surprising if we did not) on the alleged justification behind some of the recent US orders for discovery which appeared to me to be deliberately and unnecessarily confrontational in relation to the data protection laws of other jurisdictions; we agreed, at least, as to the need for US lawyers to be better informed as to what those laws meant and on their duty to manage the expectations of opponents and the court with clear and timely explanations as to the difficulties imposed by the conflicts of laws.
I enjoyed this conference and will be back in Hong Kong like a shot if a further opportunity arises. InnoXcell is a new company, albeit with staff who are experienced in organising conferences on this subject in the Far East. The platform which they offered was much appreciated both by those who spoke and by the delegates.
We took the opportunity to advance the cause outside the conference. The Allen & Overy / Epiq article refers at its foot to proposed liaison with Hong Kong judges. Greg Wildisen of Epiq, Vince Neicho, Master Whitaker and I had the opportunity to talk to judges – an opportunity, as always, to learn as well as to speak.
Finally, we had the panel session at Allen & Overy to which I refer above, which was opened by A&O’s Simon Clarke. Master Whitaker, Greg Wildisen, Vince Neicho and I preceded Jonathan Crompton of A&O in addressing an audience invited by A&O and consisting mainly of local corporations. This paralleled the talk which Master Whitaker and I gave recently at KPMG in Sydney, where the dominant messages were about taking the initiative – the need for corporations to voice their concerns about the cost of litigation to both the courts and their lawyers, the need for some understanding of what was involved and what the options are, and the scope provided by the rules to tailor disclosure to the needs of the case. Epiq Systems and Allen & Overy are taking a lead, in Hong Kong as in other places. There is nothing exclusive about this and reinforcements from both providers and law firms, to say nothing of clients, is welcomed, in Hong Kong and elsewhere. We could make progress here. This week was a very good way to begin.