I do not see much point in describing in detail which sessions look interesting over the three days of IQPC’s Information Retention and e-Disclosure Management Summit, which starts at the Brewery in Chiswell Street on Monday. It is a packed programme, offering serious choices between competing sessions. Even if you are not going, I recommend running your eye down the listings for the three days. They serve as a list of topics which ought to be on the agenda of anyone with a legal or information management function in a company and of those who advise them.
The first day, Monday, consists of six workshops of three hours each. Between them they cover building e-disclosure teams, cross-border disputes, early case assessment, proportionality, compliance, and the deceptively simple question “Where is the data?”. The speakers come from major players in the UK, EU and US litigation and investigations and the three-hour time slots offer interaction with the audience which is not always possible in the standard sessions. I did one last year; the time flew by and the panelists, as well as the audience, gained much from taking part.
The Tuesday sessions put a strong emphasis on regulatory requests and investigations and on information management, with a single track in the morning and three tracks in parallel in the afternoon. There are, again, some strong speakers here with hands-on experience at the highest level and some serious conflicts when it comes to choosing which of the afternoon sessions to attend.
My own decision-making, at least, is rather easier on Wednesday since I am involved in some of the panels myself. We open with the by now traditional US-UK judicial panel with Judge Peck, Judge Grimm and Judge Facciola from the US, and with Senior Master Whitaker and His Honour Judge Simon Brown QC flying the UK flag. Patrick Burke of Guidance Software moderates as usual.The key words in the session title are “providing effective leadership” and that is what we get from these five judges in their respective jurisdictions. It is perhaps not appreciated how significant this annual panel has been in generating valuable and practical understanding which informs judicial thinking on both sides of the Atlantic. I attend the equivalent panels in the US, and the trade in e-discovery / edisclosure ideas is now two-way. The UK is the second-largest legal market in the world, and no-one took any notice of us on this subject four years ago.
The morning sessions which follow, run by industry leaders, look at different aspects of preparation for and reaction to litigation and regulatory challenges.
I am taking part in three panels back to back in the afternoon, each looking at a discrete area. My primary role in each case, I should add, is to facilitate the contributions of others, not to make three speeches of my own.
Vince Neicho of Allen & Overy and I were part of the working party which drafted the new Practice Direction and Electronic Documents Questionnaire. First Advantage Litigation Consulting have invited us to focus on the Questionnaire in a session which aims to emphasise both its practical aspects and the positive contribution to the process it can make even in circumstances in which it is not compulsory. Vince Neicho has been using the Questionnaire since before the Practice Direction took effect, which explains our emphasis on positive and practical matters. Drew Macaulay of First Advantage gives the provider’s perspective.
Next I am doing a session with Kate Paslin and Caitlin Murphy of AccessData. At a conference last year, Master Whitaker emphasised the fine line which exists between conduct which is merely inadequate and that which is actually negligent. The only reported cases of negligence in an e-disclosure context are a couple of wasted costs applications for which proof of negligence is an essential component. I do not think it helps very much to distinguish between negligence in the formal sense and mere conduct falling short of accepted standards. It is great to be able to beat off a negligence claim, but better still not to get into the position where such a thing is possible. The risk exists, nevertheless, which is why we take it as our primary topic.
My next session focuses on the duties of preservation. To US eyes, the UK courts appear very relaxed about preservation failures. There are signs that US courts are stepping back, just a little, from some of the more extreme, and highly technical, arguments about the duty of preservation. Are we in the UK as laid back about it as some think? Is it worth the risk of failing to preserve what is, after all, the evidence, quite apart from the duty to comply with the formal disclosure obligations. Who better to tell us about this than Ronke Ekwensi of Pfizer, for whom every day is a new preservation challenge? We aim to draw out some practical suggestions from the contrasting UK and US approaches.
These subjects are all chosen for their importance in everyday litigation as well as in the larger stuff, delivered in manageable bites. Running in parallel with all three of my sessions is a big panel of judges and others which, in nearly 3 hours, will leave no stone unturned in relation to the Practice Direction. If you have a particular focus on privacy and data protection, Denise Backhouse of Morgan Lewis and Damon Greer of the US Department of Commerce have a session devoted to that.
The high spot of the show, from my point of view, comes right at the end. For the third year running, we are putting on a short play – a series of scenes, rather – at which the three US judges, the two UK judges and Patrick Burke of Guidance Software throw a none too serious light on dark corners. In 30 minutes or so, we hear a solicitor tackling first a software salesman and then an eager-beaver opponent; a more serious note comes with a case modelled on Rybak v Langbar (where the claimant’s case was struck out after data was deleted); and we hear an application for a superinjunction at which the terms “disclosure” and “discovery” revert to their normal meanings – the papers disclose and the wife discovers, whilst the applicant gets three points on his licence thanks to the vagaries of a new method of arriving at a majority judgment by Alternative Voting.