The UK Bribery Act is now on us, having come into force on 1 July. Like the Foreign Corrupt Practices Act in the US, the Bribery Act has highlighted the importance of information management and of eDiscovery techniques and processes both in the preparation for and in the reaction to regulatory and similar investigations.
The subject raises both cross-disciplinary and cross-border implications, with lawyers specialising in the pure regulatory aspects joining forces with eDiscovery / eDisclosure experts to emphasise that a large element of both prevention and cure lies in knowing what information you have, in being able to discriminate between what matters and what does not, and in being able to find relevant documents and information, preferably before the regulator or prosecutor does. Alison Stanton, eDiscovery counsel for the civil side of the US Department of Justice, emphasised at the recent IQPC conference in London that the DOJ will find these documents once it has cause to start looking; the same will be true of the SFO. Modern technology and the skills you need for electronic discovery have all but killed the idea that your needle was safe if its surrounding haystack was big enough.
This was but one of the subjects covered in a breakfast seminar which Epiq Systems organised on 14 June in London. David Cracknell of Slaughter and May and Mark Surguy of Eversheds covered the practical side of the legal context; Vince Neicho of Allen & Overy and I dealt with the e-Disclosure aspects; Professor Dominic Regan brought a more than academic eye to bear on the law.
I find it quite hard to keep notes of events like this, particularly when the moderator, in this case Greg Wildisen of Epiq, may fire the next question at any of the panellists – it makes for livelier discussions, but you lose the thread if you are still noting down the answer to the last question but one. Fortunately, Deborah Blaxell of Epiq took comprehensive notes which you can find here.
The fact that 1 July has come and gone does not, of course, mean that companies and their lawyers can relax. I was asked if law firms were generally on top of this subject. I am not convinced that they are, once you step away from the very large firms or those with active training programmes. I have taken to dropping references to the Bribery Act into eDisclosure discussions with lawyers, and am faintly alarmed by the number of times I get the reaction “Remind me…”. Various things have contributed to this: there is a perception that this kind of legislation relates to other types of company, not those of our clients; all the nonsense about lunches and sporting tickets for clients has taken eyes off the real purpose and effect of the act; if the government had wanted to undermine the SFO, it could not have devised a better strategy for doing so, with its constant contradictory pronouncements and hints about its future. All these factors, I said, had weakened the sense of urgency in some firms.
It helps, perhaps, to picture yourself as the recipient of an urgent early-morning call from a client who has just received a letter or, worse, a visit from the SFO. What is the first advice you will give? Where will you turn for specialist input? If you cannot answer these questions, then you may care to give the subject a closer look
My thanks to Greg Wildisen and Epiq for organising this event and for inviting me to take part in it.