By the end of next week, I will have spoken at four eDiscovery events in Germany during the year, a four-fold increase on any previous year. I do not take this personally, as it were – there is growing interest in eDiscovery, as well as in the wider subjects of dispute resolution and regulation. There is a Litigation Summit coming up in Frankfurt on 23 to 24 November which I had not spotted until First Advantage Litigation Consulting drew it to my attention.
Michael Becker, Regional Director of Litigation at First Advantage Litigation Consulting is one of the speakers. He says:
“The rise in cross-border trade has been accompanied by an increase in cross-border litigation, arbitration and regulatory investigations. The underlying causes of these disputes are, broadly speaking, the same as they have always been, but with an added layer of complexity as companies now litigate and respond to regulatory matters in a variety of jurisdictions, with varying legal frameworks and cultural nuances. Understanding your exposure can help minimise risks and there are a lot of proactive measures that legal professionals can take to ensure that they are better prepared to deal with such matters.”
This puts it very well. To judge by the speaker list, this will be a high-level conference aimed at those who are already alert to the problems which arise when “varying legal frameworks and cultural nuances” collide. They will want practical advice on how to deal with the problems, which First Advantage is well able to give them.
Leaving aside the sophisticated players on the speaker list, EU audiences are in a sense a mirror of those to whom I speak in the US. US companies and lawyers have a vague sense that electronic discovery is more restrictive in the EU but gasp at the limitations which data protection, and privacy in particular, impose on their God-given right to collect everything. EU audiences have a similarly ill-defined understanding that US discovery is an intrusive and expensive activity to be repelled or (preferably) ignored.
Neither position is tenable. There are certainly cases where it is impossible to comply with the rules in one jurisdiction without breaching those of the other; that is a commercial reality which parties are better off knowing about in advance then discovering in the middle of litigation or an investigation. There are many more cases where transparency and the “proactive measures” to which Michael Becker refers can mitigate the risks and help find a way through the conflicting obligations.
Conferences like this are a good way to find out what can be done, both from companies who face these problems weekly and from those who advise them. I will not be at this one (my last foreign trip of the year is next week) but I look forward to hearing what is said.