It was a dark and stormy night, and as he watched the lightning split the clouds and heard the thunder rolling across the castle’s turrets and towers, he thought sod this for a game of soldiers. With six unbroken hours of speaking and moderating and a late night behind me, and only a late morning flight ahead, surely I can just be left just to sleep for a change.
The occasion was AccessData’s Electronic Discovery Conference in Germany, run in partnership with H7b1 and DRS Digital. The venue was the Schlosshotel Kronberg just outside Frankfurt, quite the finest venue I have ever spoken in. It was the home of Victoria, eldest daughter of Queen Victoria, and Empress-Dowager of Germany following the death of her husband Frederick after only 99 days as Emperor. She was the mother of Wilhelm II, which is why Britain and Germany were ruled by cousins during the Great War. It belongs firmly in the English Gothic Revival style, and the curious but comfortable mixture of cathedral-like pillars and warm, red carpets is very English, whilst the exterior is unmistakably German. The menu is similarly divided, speaking of “the “englischer Tradition der Afternoon Tea” with “Scones mit Clotted Cream und Muffins”. It is a very tangible reminder of the close relationship which once existed between Britain and Germany and the similarities in outlook and much else.
There is much that is different, of course, and the discovery of documents for litigation is one of those differences. Germany, like other countries in Europe, is having to recognise that electronic documents, and the means of handling them, can no longer be dismissed glibly as something which Americans do, with the implication that it is an unnecessary and unnecessarily expensive game. It has something of that about it, certainly, to non-US eyes, but it is important to distinguish between different points here: on the one hand we have the fundamental principle that the documents hold the contemporaneous evidence and its allied equitable principle that those who seek help from the court must be transparent about their evidence; on the other, we have the rules and procedures governing the scope of discovery and its production. One can praise one and stand amazed, sometimes, at the other.
European countries can no longer duck this: the US is a significant trading partner; many German companies are owned by or are related to US companies; the EU commission is increasingly demanding to see documents for regulatory reasons; the UK Bribery Act has potential implications for any company with a UK presence or UK business; there is just too much information to manage if all these factors are to be accommodated in a modern business world.
If Germany can no longer avoid all this, it is equally clear that they need to understand the effects of common law discovery and the efforts being made in all common law jurisdictions to improve on it. I opened the conference with a summary of developments in the US, the UK, Singapore, Australia and other Commonwealth countries aimed at reconciling the obvious conflict between the time and expense involved in discovery and the need for all parties and the courts to know what the evidence is. There are other conflicts, notably the clash between US-style openness and EU privacy and data protection laws. It is important, sometimes, to recognise that some conflicts will never be resolved without compromise or without taking a very long route round the problem.
There was particular interest in the UK Bribery Act. One of the points which I made was that whilst a direct nexus with the UK may be required for direct intervention by the UK authorities, the “trickle-down” effect was likely to be just as significant – companies who are subject to the Bribery Act would need to know more about those with whom they have dealings, including joint venture partners, and this was likely to put pressure on non-UK companies to be compliant even if they were not themselves directly subject to the act. Information management is only a corner of this, but it is an important one.
Predictably, perhaps, the conflict between US-style discovery and EU privacy caused the greatest concern, with assertions that the reality of practical business life was at odds with the strict legal position. I put down an incipient riot by my usual insistence on sticking rigidly to the timetable. Rafik Abboud of H7b1 gave us a sensible and practical overview as to how to effect a sensible business compromise on this subject. My main point about this conflict, like so many other things, as that it is a matter of assessing risk – I do not just mean the risk of getting caught exporting data, say, but the whole balance between competing demands. You cannot make that assessment if you do not know the framework of rules. We meet the same objections in relation to the Bribery Act, where there is usually at least one member of the audience who wants to complain about the legislation. We cannot do anything about that, so let us focus on strategies to reduce the risk.
Vince Neicho of Allen & Overy and I did our usual double-act on the recent developments in the UK electronic discovery rules, suggesting that the principles of cooperation and transparency which underlie the Electronic Documents Questionnaire have value well beyond the confines of UK civil procedure. Other speakers came from both the UK and German offices of Alvarez & Marsal, from DRS Digital, from the Luther Law Firm, and from Siemens.
We ended with a presentation by Tim Leehealey, CEO of AccessData. Tim managed to leave the audience informed as to the state of modern technology without ramming AccessData’s forensic and review tools down their throats. We ended with a panel session in which Tim Leehealey, Vince Neicho, AccessData’s Kate Paslin and I picked up the loose ends and dealt with questions. We got what one always hopes for in these unstructured closing sessions – useful input from audience members who have day-to-day dealings with the problems which we had discussed during the afternoon.
I will confess now that I had approached this conference with some trepidation – ten back-to-back sessions with only two short breaks across six hours did not seem a particularly attractive prospect. I was wrong. This was a well-chosen programme with a careful selection of speakers able to address a wide range of subjects. Each session lasted no more than 30 minutes and, as I have said, I was rigourous in keeping the speakers to their time-slots.
Most of the delegates and speakers stayed on for dinner at a table which stretched seemingly into the middle distance in a spectacular room hung with tapestries. The food was of the highest quality and the after-dinner conversation went on until after 1:00am – which is why I could have done without the storm in the middle of the night.
From my point of view, there was more to this conference than first-rate speakers in a first-rate venue. I keep a rough timeline in my head of subjects and jurisdictions to cover – last year took me to Singapore and Hong Kong for example. This year centres largely on the UK Bribery Act and on the judicial acceptance of advanced technology. Mainland Europe, and specifically Germany, was on my list for next year. This conference, and the reaction to it from those who attended, promotes it up my To Do list.
Of course, nothing ever drops off the list – the practice and procedure in England & Wales, which is where I started, deserves no less attention as new fields open up. Everything I do, however, has a UK motive ultimately in mind, whether it is the development of arguments to use against our own Civil Procedure Rule Committee (and, I am afraid, that contentious-sounding word “against” is deliberately chosen) or the broader question of British competitiveness in the worldwide legal services market, the subject of a recent Ministry of Justice paper which I wrote about here. Whilst the MoJ civil servants are busy putting together information packs for trade delegations, others are doing useful things: Australia is planning to invest seriously in judicial training; Dubai and Qatar are establishing courts in which all the virtues of British-style justice will be combined with an efficiency which we cannot match on our present course; and German law firms are beginning to set off down a road which will reconcile their efficient court processes with equally efficient information management. I do not need a purely commercial motive for wanting to get involved in that – it is extremely interesting in its own right, and my next German conference date has gone in the diary already – more on that in due course.
My very great thanks to Abdes Afras and Charity Wagner of AccessData for pulling this event together and for inviting me to lead it. If each successive conference must be better than the last, then the next one will have to be in Neuschwanstein