There was something for everyone at the IQPC Document Retention and EDisclosure Management Summit in London this week. The Bribery Act gave added incentive for those responsible for information management within organisations; at the other end of the process, prosecutors and judges from the US and the UK emphasised that the target is not merely formal compliance with court rules but business objectives and business efficacy; in between, the technology begins to appear – at last – as a tool to support the business and procedural requirements and not, as it used to, as a free-standing objective of its own.
We have also finally eradicated the impression that US judges, providers and practitioners are missionaries come to civilise a backward race. We are all in this together, thanks to four specific facets of globalisation: the need to collect data worldwide and the privacy conflicts which that brings; the fact that the dominating new technology for creation and dissemination of data (of which Twitter and Facebook are but two examples) goes global immediately; the convergence of thinking on court-led procedural matters such as co-operation and proportionality; and now the Bribery Act, matching and exceeding the reach and the implications of the US Foreign Corrupt Practices Act. One US visitor said that she had gone away from a previous conference wondering why she had crossed the Atlantic simply to hear other Americans speak; there are still plenty of them here, but their contribution now brings a world view, not merely a US one, to what has become a much more collegiate group of experts.
As always, I went to relatively few sessions beyond the six in which I took part because I use these events as an opportunity to talk to as many people as possible. I mention this not merely to justify my failure to report comprehensively on the whole conference but to emphasise a hidden value in these events, and an overlooked justification for time taken out of the office. Unclear about some particular technology and whether it its use is likely to be acceptable in a court? Talk to a few people who provide it and then to a judge. Not sure whether your company is ahead or behind others in compliance matters? Have a chat with people who hold parallel roles in other companies. There is much more to these events than one-way communication from the platforms.
One apparently trivial change in the catering arrangements made all the difference: the food was served in discrete portions in small bowls, all capable of being eaten with a fork. Instead of being stuck between the same two people for lunch or (as at some conferences) searching for somewhere to rest one’s plate because two hands are needed to carve, one could wander around, continuing the conversations whilst eating. Almost by the way, the food was extremely good. This conference used parts of the Brewery in Chiswell Street which I have not seen before, including an attractive exhibit hall big enough for the delegates to wander around the booths whilst eating, and a vast brick-walled auditorium with well spaced tables. This is not mere scene setting – these little things make all the difference to speakers, exhibitors and delegates.
The pre-conference workshops
There were six pre-conference workshops the day before the main conference, each of them three hours long. I looked into two of them, one by Clearwell on early case assessments and one by Epiq Systems on proportionality. These work best with relatively small audiences, interspersing talks from a panel with discussions. The Epiq workshop included Professor Dominic Regan (seen above with Martin Bonney of Epiq) who, in addition to knowing his law, is an expert on costs and involved in the costs management pilot in Birmingham. Lawyers unfamiliar with electronic disclosure tend to see only the outlay on technology and technology support, and overlook the very significant benefits; a workshop like this is an opportunity to connect the providers’ input with the questions which must now be addressed at a case management conference.
In his introduction to Day 1 of the conference, Patrick Doris of Gibson Dunn & Crutcher identified what was to be a recurring theme in referring to “multi-jurisdiction, multi-agency variations between jurisdictions and the lack of uniformity in judicial approach even within the same court”. This appears most strongly, perhaps, in US civil courts where much is driven by individual judges with the knowledge and interest to push things forward (and therefore away from existing norms). If it is a problem within that single jurisdiction, how much bigger problems when more than one country’s laws are involved and when different authorities have overlapping interests?
US and European regulatory investigations and prosecutions
The UK Bribery Act 2010 has given the UK a place at the international table – and not one universally welcomed either by UK companies or by those from elsewhere who find themselves affected by it. The panel reflected the worldwide implications, with Jean-Bernard Schmid, an Investigating Magistrate from Switzerland, Anthony Wilson, a senior legal adviser at the Serious Fraud Office, and Allison Stanton, Director of E-Discovery in the Civil Division of the Department of Justice. The moderator was Tommy Helsby, chairman of Kroll.
Jean-Bernard Schmid picked up the point about overlapping jurisdictions which, perhaps, appears more strongly as a problem in Switzerland than anywhere else. Two-way traffic in evidence-gathering was particularly difficult there, he said, because of restrictions on co-operation with organisations outside Switzerland and because of the Swiss courts’ strong respect for local rules of evidence
Anthony Wilson of the SFO (seen left with Allison Stanton) sought to stress the SFO’s willingness to understand the issues which companies face and to try and be accommodating. The context is the question “How effective would your systems be when reacting to a request?”. The message “We are human beings and want to understand” was necessarily (and this is not a criticism) undermined by the express reminder that the scope for leniency is more limited in a criminal context than in a civil one. The velvet glove “Do come in and have a chat” approach was rather contradicted by the statement (specifically in the context of external constraints such as a blocking statute) that “We would have to say ‘that’s your problem’”. Do drop by your lawyer’s office on the way to your friendly chat.
Alison Stanton’s contribution is most effective when reduced to sound bites such as:
Credibility matters at each stage, so devise a records policy in the knowledge that it will be subjected to scrutiny
Engage with us early on and be forthright
We will find out about it [“it” meaning anything from an inadequate policy to a deleted document]
Deletion doesn’t look good – we can go after the individual who pushed the delete button.
It is not enough to have paper policies, in colour and bound and on a shelf somewhere.
For civil litigation purposes, if you follow your own good course, you are safe, but that is trumped in an investigation.
Distinguish between things that are not physically possible and those which are not strategic.
This was robust stuff. I am not sure I would want to be on the other side.
Leadership and readiness
Craig Earnshaw of FTI Technology and Andrew Moir of Herbert Smith took us through various aspects of corporate and law firm preparation, including the use of the Electronic Documents Questionnaire in the new EDisclosure Practice Direction 31B, the Bribery Act and the rise of social media as a source of discoverable data. A question to the floor revealed that very few of those present had had experience of using the Questionnaire. That itself is perhaps not surprising – it applies only to proceedings commenced since 1 October 2010 – but the readiness message is that in-house and external lawyers need to know how they will deal with it when it arises.
That theme was developed in the next session, led by Patrick Burke of Guidance Software with Denise Backhouse of Morgan Lewis and me on a panel. I referred to the cross-over between Bribery Act readiness and the need to be ready for other types of demand. HHJ Simon Brown QC’s Earles v Barclays judgment emphasised that companies which expect to litigate must have systems in place to give disclosure, and the same applies in the context of the Bribery Act defence of “adequate procedures”. Both require a developed process with the right tools and procedures set up in advance.
As to Twitter, I referred to the last time Denise and I sat on a panel together, in New York in March, when one of the subjects was the conflict between a company’s wish to harness the power of social media and the discovery duties which arose as a result. Putting your head under the blanket was not a substitute for a social media policy, I said, and someone in the company must take a lead on this.
Judicial panel – Judicial expectations and effective leadership
The leadership theme continued with the panel of US and UK judges which opened Day 2. This is the high spot of this conference for me, and not just because it was originally devised by me and by Patrick Burke of Guidance Software. The US judges were Chief US Magistrate Judge Paul Grimm, US Magistrate Judge Andrew Peck and US Magistrate Judge John Facciola; the English judges were Senior Master Whitaker and HHJ Simon Brown QC. I opened by briefly describing a session at last year’s Georgetown Advanced EDiscovery Institute at which the interchange of ideas between these two jurisdictions played a prominent part – something which would have been unthinkable three years ago.
One would need to read a transcript to get the full value from a report of this session. I will content myself with bullet points:
Judge Brown explained why it was appropriate that a Questionnaire should be signed. The lawyers or their clients must sign the Disclosure Statement anyway; it was sometimes necessary to distinguish between the fault of the client and the fault of the lawyer; disclosure is not just a mechanical exercise but the provision of the evidence on which justice turns, and someone must take responsibility for it. Judge Peck read out the equivalent certification by counsel for a party to US litigation which is more comprehensive in its scope but goes to the same points. I will revert to this in a separate article.
Judge Brown described a case in which analysis of a party’s time and costs estimates showed no relationship at all between what was at stake and what the lawyers were intending to spend. As the judge, he wanted to know about the whole case – the issues, the value and the intended scope of the lawyers’ task; the result of such an analysis might show that maximum value could be obtained at minimum cost by focusing first on one issue.
Judge Grimm referred to a cartoon in which the lawyer asked the client “How much justice can you afford?” Even in cases whose aim could not be expressed in monetary terms, the lawyers knew the maximum value and the worst downside, and that had to be reflected in the costs to be incurred. Lawyers would protest that pre-estimates were impossible – until they were given a maximum number of hours, when they suddenly became very good at quantifying the task and at limiting the custodians and the issues to those which really mattered.
Judge Grimm supported the idea of involving the clients. Parties’ ideas of what was important often changed very quickly when they started to see how much money they were about to spend.
Judge Facciola said that his concern was always whether there was a faster way of doing the job which remained consistent with the proper examination which justice requires. That led to a discussion about the technology tools which were available and the need to get quotations or estimates as to the best way of pursuing each stage.
Judge Peck drew attention to the defects in the old assumption that manual page-turning provides the gold standard. Authoritative studies, such as those by TReC, showed that hands-on review might find as few as 20% of the relevant documents and that technology could vastly improve on that.
Judge Grimm referred in this context (as he was to several times during the day) to an article by Maura Grossman on technology-assisted review. This is an article which warrants more attention than I have been able to give in the run-up to IQPC and I will be writing about it shortly. You will find it here.
Judge Peck talked about transparency and co-operation in the context of the use of technology, and specifically in the context of the value of persuading opponents that your use of technology yielded acceptable results. You cannot just say “I have got this black box”, but must be prepared to educate your adversaries and the judge. This, I should say, is the coda to most of the presentations which I give to lawyers – new skills are required, both of understanding and of explanation; judges have spent their lives acquiring new subjects from scratch and can do the same with reasoned explanations about electronic discovery. It is no good sitting around and waiting for a judicial determination which will give authority to the use of technologies like predictive coding (which was specifically mentioned, as it is mentioned everywhere just now). There will be no such determination until people start evaluating and using them.
I insert my own observation here, appropriate to the context because it first arose during a webinar which I did last year with Judge Grimm, Judge Facciola and Maura Grossman. If, as must be right, courts (to say nothing of clients) start requiring parties to weigh up the use of different methodologies and their costs, then at least one technology estimate must sit alongside any non-technology way of dealing with the problem. The burden of the argument must pass to the party who argues for the more expensive course.
Judge Brown reminded us that the test in England & Wales involves a reasonable and proportionate search, and that it was neither necessary nor helpful to look under every stone. Judge Brown is strong on analogies from other areas of business – audit does not generally require an examination of every transaction, he said. He also observed that there was no other area of business activity which companies launched into without some idea of the costs which they were about to incur.
Judge Facciola focused on the various types of social media which were becoming increasingly important in any discovery context. This was partly a matter of pure data volumes in relatively inaccessible form. It was also, however, an indicator of a changing attitude to document production – the next generation, he said, was more concerned with the end product and less with recording how they got there. The apparently ephemeral nature of social media transactions can blind people to the possibility that each step on the way may be recoverable in due course. As Twitter and its kind spread from personal to business relationships this problem could only increase.
Master Whitaker emphasised two things – that no judge actually enjoyed adjudicating on disclosure and that the same issues were arising in Australia, Singapore, New Zealand and elsewhere, not just in the US and UK, and these jurisdictions were developing their own ways of managing a growing problem. Master Whitaker speaks on this subject with the authority of one who has studied developments in each relevant jurisdiction and who is listened to in all of them.
This group of judges (which includes one or two others not at this conference) has become a team whose joint input is having a profound influence on ediscovery / edisclosure thinking around the world. I recently read of a senior English barrister who spoke slightly disparagingly (or, at least, reported the disparaging view of others) about “a few judicial techno-nerds”. No one who heard this panel would so describe any of these judges; their main driver is affordable justice.
A case study with the client
I missed the rest of the morning’s sessions, in part because I was due on stage for most of the afternoon. I did, however, catch the end of a presentation by Dean Gonsowski of Clearwell which took the form of an interview with Sigrid Sjöstedt, Discovery and Liability manager for Volvo Car Corporation. If the bit I heard was a guide, this was an extremely useful way of giving life to an account of a client project. I recently used a picture of a car assembly line in a slide set as a model for project management, emphasising the idea that lawyers and their clients should know in advance how they will handle an ediscovery exercise – they decide who will do what, in what order and with what tools to ensure that the process runs as quickly and as cost-effectively as possible. I do not think that Sigrid’s talk adopted this metaphor, but I think I need to go to Göteborg and see the Volvo factory in order to develop this parallel. My wife, heard recently wondering if we might go back to owning a Volvo, has her own interests in seeing how they are made. We have an invitation.
The Questionnaire, Negligent Practices and Preservation
One could devote a whole afternoon to each of these subjects. By accident rather than design, I found myself on panels dealing with each of them in turn. All the judges spent the afternoon in a session running for just under three hours covering the practice direction and the questionnaire. Vince Neicho of Allen & Overy and I reckoned we could pick off the key factors in 45 minutes and, aided by Robert Brown and Drew Macaulay of First Advantage Litigation Consulting, we did just that. I stressed that the cooperation and information-sharing elements were neither new nor onerous, merely a structured way of complying with obligations inherent in the 1999 Civil Procedure Rules. Vince Neicho brought a double element of experience to the subject, as one who was (as I was) a member of Master Whitaker’s working party which drafted the questionnaire and also as a litigation support manager who uses it.
My next session was with Caitlin Murphy and Kate Paslin of AccessData on the subject of negligent practices and how to avoid them. The “negligence” which we had in mind here was not the formal proof of the tort of negligence – as one who once lost a negligence claim for a client on an incomprehensibly fine distinction between reliance and causation, I am well aware how hard it is to prove negligence. My point was that you do not need to have been technically negligent to lose costs, lose a case and lose clients through defective e-disclosure. Caitlin and Kate reinforced this messages with ideas on how to avoid any such imputation.
The third of these back-to-back sessions was about preservation, a subject on which US and UK thinking diverge. There is no dispute about the need to preserve documents likely to be needed as evidence, but the trigger for preservation, the mechanics of legal hold, and the way in which the court deals with preservation failures are very different in the two jurisdictions. The US thinks we are lax; we think that they go way over the top – as, to be fair, do many judges and practitioners in the US. Who better to talk about the US side than Ronke Ekwensi, VP for E-Dscovery at Pfizer. Pfizer, like all pharmaceutical companies, faces preservation demands all the time, and Ronke was eloquent both as to those obligations and as to practical ways of managing them.
The E-disclosure play
And so to the play, the annual set of short scenes in which the most respected judicial exponents of proper e-diclosure / ediscovery in two continents send up themselves and the subject. Master Whitaker and Judge Brown represented the UK, Judge Peck and Judge Grimm flew the flag for the US, and Patrick Burke of Guidance Software played a persistent salesman. Judge Facciola had had to return to the US, leaving me with a script with his name against several paragraphs. I needed someone combining gravitas with a sense of humour to take his place. The obvious choice was Ronke Ekwenswi who skimmed the first page of the script and agreed to do it. Nigel Murray of Huron Legal had the bright idea of sending someone out for a bow tie (both Judge Facciola and Judge Grimm always wear them), and we were good to go.
There were nods to Shakespeare, to the King’s Speech (“I’ll tell [Chris Dale] to ph- ph- photograph something else”), to Sherlock Holmes and to “the old ‘joke’ about American tourists who need their calendar to tell them where they are”. A solicitor called Whitaker repurposed the salesman’s technical patter as a weapon to frighten off solicitors who dared raise the subject of e-disclosure, unsuccessfully so when he was up against an opponent called Brown who was unimpressed by the idea of live tweeting from the Rotary club. We struck a more serious note with text taken in part from the data destruction case Rybak v Langbar. The last scene involved a superinjunction sought on behalf of an Oscar-winning, Premier League footballer with a senior position in a bank, and involved confusion between a dancer from Lapland and a lap-dancer, and between her tail and her story. The photographs (thanks to Geoffrey Lambert of e.law for taking those) show that the cast seemed to be enjoying itself, and the right sort of noises were coming from the audience.
This was an important conference, with content which will help make the weather and not merely comment on it. I identify the warnings from the prosecutors and the judicial acceptance of the role of technology as the two most important elements to come up at it.
I must thank IQPC for involving me in the organisation, something for which I am always grateful, as well as those who invited me to take part in their sessions and those who were willing to take part in my play at the end of a very long day. Epiq Systems, Guidance Software and Digital Reef included me in memorable dinners, with opportunities to get to know people better as well as to eat fine food.
I missed a fair amount which I had hoped to see. ZyLAB and Symantec have both announced new products recently which I would have liked to see or at least hear about. Howard Sklar of Recommind writes challenging stuff about the Bribery Act and I missed his talk (I did a panel with him the following day, however, which I will write about separately).
Not everything went entirely to plan. A determined and attractive young lady from IQPC dragged me down to an empty room in the basement with a video camera – “dragged” because there is never the right moment to be taken out of the conversations, and because I correctly assumed that her intentions were entirely honourable. We were well into her interview before we realised that my microphone had fallen off at the beginning, leaving her with nine minutes of silent footage of a man opening and closing his mouth. There was in addition an oddity which I have yet to resolve. My wife, Mary Ann, came to Ernst & Young’s cocktail party on the way to a dinner. I left her in the company of what I thought to be a respectable group of e-disclosure specialists, to find on my return that one of them was offering to send her some photographs of his socks. It adds a new dimension to the expression “personal data”.