“We have been travelling since we saw you last. We have been in America, entertaining the Americans whose need, let’s face it, is greater even than yours. Of course when we’re over there we say that the other way round”
That is how Michael Flanders opened Flanders & Swann’s second selection of comic songs At the Drop of Another Hat in London in 1963. They seem successfully to have crossed the Atlantic divide despite a style which was rooted so firmly in English traditions of education and culture that it more or less excluded the Welsh, Irish and Scotch; the verses to their Song of Patriotic Prejudice – “The English are best” (lyrics and video) would today bring complaints from some humourless official who would investigate it as incitement to racial hatred and arrange a compulsory diversity course. Fashions change in these things – has Hollywood at last given up casting a well-spoken Englishman as the villain in every film? The devolution of powers within the UK, the subservience to Europe which culminated in the Treaty of Lisbon, and Blair’s shameful grovelling to Bush have left us without influence in areas which we used to dominate. Perhaps that is why I am so keen that we should be heard in my own field.
I am just back from Washington, where Master Whitaker and I flew the English and Welsh (but not Scottish or Irish) edisclosure/ediscovery flag at the Masters Conference. We were joined by an Australian judge, Justice Einstein, of the Commercial List in the Supreme Court of New South Wales. I am not sure that anyone in the US would have been interested two or three years ago. Before then, as I said in opening my International Judicial Panel, US judges would come to London to tell us, in a rather de haut en bas way, how we should be handling electronic discovery, and English lawyers and judges reacted by disdaining the whole subject. The tide turned with a judicial panel which I organised with Guidance Software in 2008, when we put Judge Grimm and Judge Facciola from the US on a panel with Master Whitaker and HHJ Simon Brown QC from the UK. Since then, we have tapped into and shared not just each other’s thinking, but the developments in other common law jurisdictions; bringing Justice Einstein from Australia to a US platform marked a further step towards pooling judicial thought on this shared problem.
The Masters Conference has grown over the same period to be a very good forum for just this level of thinking. It is big enough to attract a good range of speakers, delegates and sponsors; it is thoughtful without being overbearingly intellectual; the mix of law, technology and practicality is about right; it recognises the importance of local interests without forgetting that there is a wider world out there which is important to US interests both as a market and as a source of ideas.
I give a brief account of the sessions which I attended – I usually do separate posts about individual sessions, but there were thematic links running through them which then would be lost.
The Bastardization of Early Case Assessment
My first engagement was on a panel with James Zinn of Huron Consulting Group and Fred Olsen of USIS | LABAT. It was moderated with his usual good humour by Craig Ball and sponsored by Nuix, and the title was The Bastardization of Early Case Assessment and Emergence of Early Case Review. Amongst many things which Craig Ball and I have in common is that we were litigation lawyers in the days when clients would hand over a slim file of key documents and you would work outwards from there. It is a vital element of modern early case assessment tools that you use them to assess the scale of the task by identifying and collecting all the potentially disclosable documents at an early stage. It is easy then to lose sight of those first key documents, as well as of the client’s objective, in dealing with the mechanics of collection and review.
My plea was that we remember to engage the brain first – “the best technology lies between your ears”, I said. I resisted claims to the effect that “my ECA is earlier than your ECA”. “Early” means in time to anticipate and perhaps head off the next big chunk of expense, and was a shifting concept. The value of the many good ECA applications lies in their ability to home in on what matters, to use their speed for reiterated passes through that part of the data which your brain has told you is important, and in their visualisation tools which allow short-cuts to the heart of the thing. I mentioned, as I was to again in my international session, Master Whitaker’s judgment in Goodale v Ministry of Justice, with its emphasis on picking the handful of custodians at the centre, and on the use of modern applications as an adjunct to this thinking.
I was interviewed immediately after the session by Lisa DiMonte of MyLegal. This was filmed on a handheld iPhone in a large, bustling concrete building. Whatever you think of the interview itself , the technical quality is amazing.
Women Thought Leader Panel: E-Discovery Today, Tomorrow and in the Future
When AccessData acquired CT Summation, they got a bonus in the form of Caitlin Murphy, whom I knew at Summation and who is now Senior Product Marketing Manager at AccessData. Caitlin’s Women in eDiscovery panel at last year’s Masters Conference was one of the highlights of the show – HHJ Simon Brown QC was so impressed by it that he arranged for a similar event in Birmingham and sat on a WIE panel at IQPC in London. AccessData sponsored this year’s WiE panel.
It would not have been possible to start a group called Women in eDiscovery in the UK. The prevailing culture of the last decade precludes any group defined by its gender except, curiously, in the Labour Party itself, which requires at least eight female members of the Shadow Cabinet regardless of talent. Women in eDiscovery now has 5,000 members, including a UK chapter (contact Laura Kelly for details). Its members need no playing field to be levelled for them.
Caitlin’s panel included Shawnna Childress, a director at LECG and co-founder and executive director of Women in eDiscovery, Allison Stanton, recently appointed Director of eDiscovery at the Civil Division of the US Department of Justice, Janet Heins, Director of Compliance at Biogen, and Susan Watson, a private practice litigation lawyer. This was a lot of fire-power for a single session, and it generated more thought-provoking material than I have time to record here. I will content myself with snippets. Allison Stanton said that it is easy to lose sight of why we are doing this – we should use the technology to get back to the merits of the case as a single team, not with one group focused on tools and another on the merits.
Susan Watson made a plea for targeted requests and sensible timeframes – what value is there in winning the arguments if the result is more data than you can sensibly deal with? There were several references to the value of education for both lawyers and judges, and to improvement, not least in co-operation, as younger attorneys came on stream. I was particularly taken with two references to the UK as a source of good ideas, and deeply hurt by the suggestion that it was dangerous to say anything controversial whilst I was present, in case I wrote about it; don’t worry, ladies – your idea as to how to avoid carrying RFID clothing tags is safe with me, but I will keep the camera ready.
Judicial Expectations in E-Discovery
Peter Pepiton of Mimecast was the moderator of a panel consisting of Judge Joy Conti, a Federal District Judge of the Western District of Pennsylvania, and Magistrate Judge John Facciola of the District of Columbia. The latter, of course, is well known to me from panels we have shared on both sides of the Atlantic. I cannot think how I have missed Judge Conti, whose robust approach to active case management must keep the lawyers on their toes. Her court has a questionnaire/checklist whose intent is similar to the UK’s new Electronic Documents Questionnaire (see Appendix LCvR 16.1A of the Local Rules from page 106, the 119th page of the .pdf, for the Pennsylvania one and the latter part of the Practice Direction to Part 31 CPR for the UK one).
My notes record Judge Conti as saying “I look through the checklist and see if there are problems. I tell the lawyers that if they come up with a problem later which they have not addressed, I will hold them to what they said”. Quite often, she said, lawyers say “I need to rethink this”. Judge Conti also gives short shrift to broad assertions that some aspect of discovery is disproportionate. She sends the lawyers away to get estimates, and sends them away again if the estimates inadequately break down the costs. The result enables her to make proper decisions as to what is worth doing.
This is consistent with one of my reiterated themes in the UK. Some of our important cases, notably Digicel v Cable & Wireless, Earles v Barclays Bank and Al Sweady v Secretary of State for Defence, have involved vague assertions that some step or action is disproportionate. I am all for the idea of identifying what is worth doing and what is not, as you can tell from what I said on the ECA panel and from the fact that my main takeaway from the WiE panel concerned intelligent focus on what really matters. You have to do more, however, then merely make the bland and unsupported assertion that it is all too expensive. All three of the cases above might have ended differently if the parties had assembled their arguments properly and presented them differently.
I have pages of notes about the session. I hope to have the chance to come back to them. That is made less necessary because Ron Friedmann of Integreon did a live blog of the session, which I commend to you
Navigating our options with International Data Protection, Safe Harbor and Data Privacy
I have attended or taken part in many panels on this subject; this was the best I have seen. Whilst most domestic ediscovery issues could be resolved by co-operation and competence, getting ESI from Europe and other foreign jurisdictions for use in US courts and investigations is the closest we get to irresistible force meeting immovable object.
Tom Matzen of Intelligent Discovery Solutions was in charge of the panel; Nigel Murray of Trilantic moderated it and the other participants were David Kessler of Drinker Biddle, Damon Greer from the EU and Swiss Safe Harbor Frameworks of the US Department of Commerce, Jay Nogle of Greenberg Traurig, and Senior Master Whitaker, who is the Central Authority for Hague Convention requests for the UK.
Nigel Murray scored a hit, as usual, with his politically incorrect slide showing the world as seen from the US and, more seriously, with Trilantic’s web page showing the data protection regimes in each European country. David Kessler, again as usual, delivered practical knowledge with zest, and Master Whitaker spoke with the informed authority which comes from fielding many half-baked document requests, some of which betray no understanding at all of the complexities or, indeed, the purpose, of data protection laws.
The key speaker, so far as I was concerned, was Damon Greer whose Safe Harbor input, straight from the horse’s mouth as it were, will have left the audience in no doubt that there are serious issues here which require both significant expertise and prompt attention right at the beginning of a case. I would have been surprised if anyone had offered any short term fix. Nobody did.
International Judicial Panel
This was my own panel with, as I mentioned above, Senior Master Whitaker from the UK and Justice Einstein from the Supreme Court of New South Wales in Australia. I must record my thanks to the Masters Conference for agreeing to my extravagant request to bring these judges such a distance.
I have already set out, in opening this article, why I think it important that information about the developments in the management of ediscovery is exchanged at a judicial level. The inconsistency which we find within jurisdictions, never mind between them, can be turned to advantage because it implies that individual judges can take the initiative, using their discretion to do things better in their own courts. The UK rules expressly provide not just for active management but for judges to make any order for better compliance with the overriding objective. Where such discretion exists, a judge might look at Judge Conti’s approach, outlined above, and adopt it in his or her own court where local rules allow. We have an opportunity here, at this formative stage in e-discovery development, to influence worldwide thinking.
Master Whitaker was for a long time the only UK judge who actively promoted the idea of informed and proportionate case management. He led the working party (of which I was a member) which drafted the new e-disclosure Practice Direction and Electronic Documents Questionnaire which took effect on 1 October. The other significant input into UK thinking is Lord Justice Jackson’s review of litigation costs.
Australia has Practice Note CM 6 – Electronic Technology in Litigation. It is a significant jurisdiction also because of the pending enquiry into discovery of documents in litigation, whose terms of reference emphasise the words “as early as possible”. You can see the connection back to my notes on the ECA session above.
I have put up a reading list on my website which stands substitute for an account of what was said in this session. The same issues arise everywhere – proportionality, co-operation, active management and, underpinning them all, moves towards transparency in the discussions between parties before significant expense is incurred by anybody.
Steven Whitaker and I have spoken together on these subjects in Australia, Singapore, Hong Kong and in Europe; we have active discussions in hand with New Zealand; I am going next week to Toronto to attend a session called Understanding Proportionality organised by Applied Discovery at which the speakers include The Honourable Mr. Justice Colin L. Campbell and Master Calum MacLeod both of the Ontario Superior Court of Justice – Toronto.
No one is claiming to have all the answers here, but each jurisdiction has something to offer the others. My next plan is to get as many as possible of these jurisdictions represented at a judicial level on a single panel. Watch this space.
The Conference itself
I do not usually go to so many sessions, let alone such good ones, at the many conferences which I attend. They are an opportunity to catch up with and those who sponsor the E-disclosure Information Project – AccessData, Clearwell, Nuix and Trilantic in this case. I saw old friends like Chuck Kellner of D4 and Andrew Sieja of Relativity, and met Steve Akers, CEO of Digital Reef – the connection here is that Project sponsors Cats Legal and Legal Inc are Digital Reef partners in the UK. Digital Reef were sponsors of a party on the rooftop balcony of the W Washington hotel and of the dinner afterwards. I exchanged introductions and market talk with Katey Wood of analysts The 451 Group. David Cowen of The Cowen Group rounded up an extempore dinner party – you sing for your supper at a Cowen dinner by contributing to a discussion which is always interesting.
The Masters Conference has an expressed ambition to get better every year. This was my third, and that ambition was reached in 2010. Thanks to Robert Childress of Wave Software and Dan Regard of iDiscovery Solutions who mastermind it, and to Marilyn Gladden and Walter Willey for the hard work which goes into running it.
From Hi-Fi to Wi-Fi
I end as I began, with Flanders & Swann. Their Song of Reproduction concerns the then-new technology of high-fidelity music reproduction. Between verses, a technical expert criticises the arrangements:
Who made this circuit up for you anyway? Bought it in a shop? What a horrible, shoddy job they fobbed you off with. I’m surprised they let you have it in here! The acoustics are all wrong. Raise the ceiling four feet, put the fireplace from that wall to that wall, and you’ll still only get the stereophonic effect if you sit in the bottom of that cupboard. You’ve got your negative feedback coupled in with your push-pull input-output; take that across your red-head pickup to your tweeter, and if you’re modding more than eight you’re going to get wow on your top. Try to bring that down through your rumble filter to your woofer. And what’ll you get? Flutter on your bottom!
I thought of this whilst grappling with the relatively simple task (you would think) of connecting to the wi-fi of the Ronald Reagan Building (the responsibility of the building, not the conference). This is the second modern US conference venue in succession at which a very technical and comms-dependent group in the most technically advanced country in the world was reduced to gibbering fury by an unreliable wireless connection which no amount of adjustment or moving around could cure. Now here in England, we just…….