I was not sorry when my plane’s wheels touched down at Heathrow on my return from IQPC’s Information Retention and eDiscovery Exchange in Munich on Wednesday night, bringing to an end 28,000 miles of eDiscovery travel in six weeks. A few hours later, I was on my way to London to talk to a law firm about the UK eDisclosure Practice Direction in the company of Nigel Murray of Huron Legal – the e-Disclosure Information Project back on home turf. Meanwhile, US Magistrate Judge David Waxse, Judge Herbert Dixon and Jason Baron were all on their way from Munich to Washington for the Georgetown Advanced eDiscovery Institute. Within hours of my saying goodbye to Judge Waxse in Munich, tweets started rolling up my screen reporting on his contributions to a judicial panel at Georgetown.
The Problems and the Players
E-Discovery touches a lot of corners. It has multiple players: there are the companies whose data must be found and produced for court proceedings, for a regulatory investigation or for internal purposes, and within the companies are multiple duties and responsibilities which are not necessarily aligned. We have the lawyers who advise them, all too often reactively rather than in anticipation of problems. There are the judges and regulators who manage proceedings and who have an interest in efficient and proportionate outcomes. Lastly, there are the suppliers whose technology and consultancy helps address the problems. eDiscovery has many facets – an ever-wider range of data sources and types, matters of budget and reputation, and overlays of privacy and HR; the issues arise in very similar form in many different jurisdictions.
Conferences like IQPC’s Munich event provide an opportunity for all these people to discuss the problems and the solutions in the sessions, in prearranged one-to-one meetings and in less formal gatherings in bars and restaurants. One must pay a particular tribute to the two US judges mentioned above, Judge Waxse and Judge Dixon, and to the UK’s HHJ Simon Brown QC, all of whom emphasised that they came to learn as well as to speak about the issues which face court users.
Welcome to Munich
IQPC’s European events seem to get more than their fair share of external complications. Two years ago, the ash cloud prevented the attendance of several delegates, speakers and sponsors in Brussels; last year we were nearly snowed in in Munich; this year fog caused delays and, for some, re-routing via Stuttgart. Most of us got there in the end. The venue was the Kempinski Hotel Airport Munich, a short walk from the terminals, and nothing at all like the picture which the dread words “airport hotel” usually imply. It is a stylish place, with a big attractive bedrooms, good food, a convenient set of conference rooms and a bar which seemed to have no closing time.
I inevitably come across the occasional minor problem on my travels – screaming brats on planes, setting off without my passport, losing my luggage, or not being able to find a decent cup of coffee or somewhere to smoke. This is the first time, however, that I have heard the receptionist say “We have no booking in that name”, followed by “…and we have a big conference going on” (to get the full flavour of this, you need to imagine that it is very late at night, with cold fog swirling around what may be the only accommodation for miles). Fortunately, they found me a room. The coolness of my reception was washed away by the fact that the bar was full of the agreeable people whom one meets at many conferences.
Video with Clearwell
Clearwell, now part of Symantec, had asked me to do an video interview with eDiscovery counsel Dean Gonsowski, and we spent part of the morning doing that. Dean knows his stuff (he is well known as a writer on eDiscovery issues as well as for his day job), which meant we could dispense with script or agenda and just run with broad questions and anything which flowed from them. I will point you to the edited result in due course.
The first day’s agenda was headed Big picture – US, Europe, litigation, technology and I opened the show with a judicial panel. Judge Waxse and Judge Brown are known quantities – “known” in the sense that I have seen them enough to be confident that I can throw them any question without notice and get a useful and thoughtful answer. Judge Dixon quickly showed why he is chosen for these panels, and the European picture was painted for us by Judge Dr Gabriella Muscolo who specialises in IP disputes in Rome.
We covered, amongst other things, the difference between the US and UK attitudes to preservation – Judge Brown’s own decision in Earles v Barclays Bank includes one of the few recitals in English case law of the limited duty to preserve documents prior to the issue of proceedings; this set up a contrast with the US, which is presently debating possible rules changes on this subject to mitigate the expensive effect of the present practice. The express duty placed on UK judges to manage cases actively was contrasted with the duty of the US judge to decide what is brought before him or her. Judge Muscolo said that the need for judges to understand eDiscovery was growing – that is not a purely Italian problem, I said, contrasting the recent Australian commitment to judicial eDiscovery training with the sadly deficient UK position. As usual, moderating a fast-flowing panel proved incompatible with making detailed notes of what was said.
My second panel of the afternoon was about costs and on how companies can contain and control them; it is a good start to be able to identify what they are. Again, I was extremely lucky in my panel: Bob Lewis from Barclays, Dr Georg Kirsch from Bayer and Godert van der Poel from Siemens have responsibility for specifying and implementing in-house solutions which aim to bring parts at least of the eDiscovery process in-house. These are companies with both the motive and the means to do the research, to buy the hardware and software, and to build teams. None of them aimed to cast off entirely from lawyers and external providers – the primary objective is to focus on the front end of the process, on those things where external cost is high relative to the difficulty involved, and on being able to manage peaks and troughs.
Andrew Goodman from LPO provider QuisLex gave the external view. Vince Neicho of Allen & Overy was due to explain how a law firm can give its clients a range of options for handling all or part of the process, but he was unfortunately taken ill and had to fly back to London. Instead, Judge Brown gave us the viewpoint of a judge who perceived the management of costs as a major part of his job, using case management conferences and the (successful) costs pilot in Birmingham as the means to ensure that costs were both proportionate to the case and as predictable as possible.
You cannot measure savings or cost-effectiveness if you do not have a clear understanding of the components of cost. The exercises being undertaken by Barclays, Siemens and Bayer each had their origins in an analysis of the historic costs of eDiscovery – not just the money paid to external providers for preservation, collection and the rest, but the fees charged by the lawyers for their input. There was some cynicism about the latter, which echoed comments made by Judge Waxse – my scribbled notes of his earlier contribution include the phrase “an excuse by lawyers to justify all they do” which came up in the context of the sanctions bogey. Many clients, I said, are beginning to question why they are paying lawyers a handling charge to undertake the mechanics of search. Yet other clients, it seems, and at the other extreme, do not even know what they are spending each year on eDiscovery; I referred to a recent article by Katey Wood of ESG called E-discovery and the law firm: Great expectations, poor accountability which suggested that 60% of the companies surveyed do not track this expenditure, which sits oddly with the importance which many of them attach to the subject.
What prompted me to refer to this was hearing Bob Lewis talking about the analysis he makes of the minutiae of lawyers’ bills – not just the annual aggregate but the 6 minute units. The real point worth making (and I did make it) was that this scales down – you do not have to be Barclays to analyse last year’s eDiscovery costs and to investigate alternative ways of managing and handling the exercise. The “handling” bit is optional in the sense that there are many providers of software and services to do that for you; the critical word is “managing”, and management begins by understanding your costs and how to reduce them, whatever size company you run. If your lawyers show no interest in taking part in this exercise, change them; I would go further, and say that lawyers who do not self-start on this do not deserve to keep their existing clients, let alone win new ones.
Social Media and eDiscovery
My third panel, on the second day, was about social media and eDiscovery. Long-term visitors to this blog may recall that I took part in a three-hour panel on this subject as it affected lawyers for the New York City bar Association in March. Planning for Munich started shortly afterwards, and the inclusion of a social media panel was one of my suggestions. I also said that if I was to moderate such a panel, I would like to be joined by Ronni Solomon of King & Spalding. One of the good things about working with IQPC is that they can make things like this happen, and Ronni was duly invited. We were joined by Jolling de Pree of De Brauw and Eric Laurent-Ricard who provides forensics services to the Paris Court of Appeal. Nick Patience of the 451 Group was one of the victims of the fog, and Judge Herbert Dixon volunteered to contribute a section on judicial ethics in connection with social media in place of Nick’s planned contribution.
We had only forty minutes. I drew attention to a Symantec survey which suggested that email’s dominance in discovery requests is being eroded by other things, including social media, and to a ZyLAB paper which gives some alarming statistics for social media use in its various forms. You can, I said, make, break or vary a contract with social media. You necessarily dispense with your usual terms of trading and the exclusions and qualifications which generally accompany the sale of goods or the giving of professional advice. Furthermore, the people most likely to be enthusiastic about social media were not necessarily the ones you would usually choose as the public face of your company or firm.
Ronni Solomon talked about the preservation and collection responsibilities which arise with respect to social media content, particularly where it was intermingled with private content. Every organisation, she said, needed clear rules and policies in addition to the technological tools and skills needed to track down the data.
I had observed in opening that social media eDiscovery was relevant to all types of litigation, to crime and matrimonial work as well as commercial litigation. Jolling de Pree is head of competition and regulation at De Brauw, and gave us examples of social media eDiscovery even in that area. He touched also on the privacy and data protection implications which arise. Eric Laurent-Ricard also emphasised the contractual and HR issues which are relevant when personal data protection and confidentiality conflict with the courts’ demand for evidence. Technology skills are only a part of the solution.
Judge Dixon looked at the area where social media activity, even by judges, had violated both ethical codes and common sense. If even judges can be blind to the implications of having Facebook friends and communicating with them about their work, then how big is the problem in other areas of life?
Managing Overload with Technology Assisted Review
Jason Baron, Director of Litigation at the US National Archives and Records Administration, made it clear that pure volumes of potentially discoverable data would put it out of our reach to give discovery in the way in which it is now handled. The use of advanced automated search methods was now essential, he said, and not merely on costs grounds or because manual review was inaccurate. There was no other way of tackling the volumes. Andrew Sieja and Nick Robertson of kCura followed this up on the last day with a discussion on computer-assisted review in which I and others took part. Like me, Andrew is alert to the need to convey the value of this technology without relying too heavily on statistics for its validation (lawyers are not good with numbers), whilst negativing the “black box” imputation which is the easy get-out for those who have reasons to prefer more labour-intensive methods.
The rest of the programme (you can see it here) brought the experiences of the providers of eDiscovery services and software alongside those who use it, as well as those with responsibility for devising information management policies. You will recognise the names of most of the corporations whose representatives had something to say about their work; the list of providers sponsoring and/or speaking at the conference overlaps in large part with the list of those whose logos appear beside this page as sponsors of the e-Disclosure Information Project – Huron Legal, FTI Technology, Nuix, Recommind, Clearwell, AccessData, Symantec, First Advantage, iCONECT, kCura, and EMC². Every company facing the issues described on the agenda needs to make the acquaintance of some at least of these providers – you may not be able to undertake evaluations on the scale performed by Barclays, but you can only be aware of what is possible by talking to companies like these.
This was a very good conference, appealing to all those with an interest in eDiscovery outcomes. IQPC has many divisions which appear to outsiders to compete with each other even within jurisdictions and industry sectors. This particular team has always been a strong one, responsive to the views of those who attend as well as those who sponsor its events, and they were soliciting views for future events before this one closed. If you have ideas – what you liked, what you did not like (and how to remedy the latter) and what you would like to see in future events, catch them now.
My thanks to IQPC, to all those who appeared on my three panels and, not least, to FTI Technology who took a party of us into Munich for a first-rate dinner.