Trans-Atlantic video panel: The differences in approaches to eDiscovery in the US and in Europe

The American Bar Association’s Section of Science and Technology Law organised a lunchtime panel session in Washington last week. Its topic was the differences in approaches to eDiscovery in the US and in Europe and how those differences might affect eDiscovery in an environment spanning national borders, e.g. the cloud. Whilst it is not unknown for me to cross the Atlantic to take part in a single conference session, I attended this one by video link.

This method of bringing people together was much touted at the beginning of the recession. The time and cost of air travel and hotels, it was said, would be prohibitive, and we would find by the end of the recession that video provided a perfectly adequate substitute. This prediction overlooked two points: one was that the cost of travel fell like everything else as airlines and hotels struggled to fill their seats and beds; the other was that there really is no substitute for human interaction, whether one to one in a bar or one to many from a conference podium. This one worked very well, and I would happily do more of them, but I am only equipped to talk to a US audience because I spend a lot of time each year in the US, soaking up my subject by talking to the people who practice it, or welcoming them to the UK.

There were two US panellists, US Magistrate Judge John Facciola and Judge Herbert Dixon of the Superior Court of DC. Stephen Mason, General Editor of the LexisNexis book Digital Evidence and a well-known speaker and writer on electronic evidence in many jurisdictions, was the other UK speaker. Bennett Borden, Chair of the eDiscovery and Information Governance Section of Williams Mullen was the moderator.

The video facilities were provided by Squire Sanders in London. Squire Sanders lists 36 offices in 17 countries in North America, Europe, Asia, Australia and Latin America on its website, with 13 languages to choose from when reading it. My only connection with Squire Sanders hitherto is that my photograph appears alongside that of a Squire Sanders partner on the Equivio website, and I know Stephen Goldstein, its director of practice support, who is an eloquent and effective advocate of technology at eDiscovery conferences.

It is worth sending a moment describing the facilities – the means of delivering messages may be less important than the messages themselves but we are all constantly looking for new ways of reaching audiences who cannot necessarily attend conferences (let alone international conferences), and this one seemed to work. The US participants were conventionally arranged on a platform, with Bennett Borden at a podium and the two judges at a table. Stephen Mason and I sat facing a camera and two screens, one showing the Washington platform and the other displaying ourselves – that part is optional and was slightly disconcerting in that left and right were swapped as in a mirror. We were displayed on a screen above the Washington panel and could see just our feet – the US panellists were slightly uncomfortable with the fact that they could not see us.

I got an early insight into the sound quality during the setup when I bit, quietly as I thought, into a biscuit, and a disembodied voice from Washington asked “Who is eating?” If the system caught that, it would not have missed our contribution to the discussion.

And a discussion it was, not merely a series of talking heads, notwithstanding the 3,600 miles between us. Being able to see the other participants made it easier than telephone webinars when you have only tone and cadence to indicate the end of another speaker’s section. It helped, no doubt, that I have done conventional panels with both the US judges, and Bennett Borden was a skilled moderator.

I will spare you the details of what was said, not least for the usual reason that you cannot simultaneously take part in a discussion and make copious notes of it. I will set out in a separate post the notes which I provided to Bennett Borden in advance which identified the key differences – and the similarities – between the US and the UK rules and practice, and between the common law jurisdictions together and mainland Europe.

Both pairs of speakers focused on the “motivation and purpose” behind our respective rules and on the conflict between cost and utility, as Judge Facciola put it.

In both the US and the UK, cost is outstripping utility, with the result that the justice which is the motivation and purpose of the civil litigation system is denied to most of those who need it. It is not easy to devise rules to close this gap, and even less easy to effect the cultural changes which need to be achieved. Competence and co-operation are consistent themes in both jurisdictions, and until we have both, eDiscovery/eDisclosure will continue to be very much more expensive than it needs to be.

The cultures, as well as the rules, come into conflict when US lawyers and agencies seek to collect data and documents in other jurisdictions. It is not just the barriers of data protection and privacy laws which get in the way – the blunt fact is that other jurisdictions do not appreciate (in either sense of that word) the scope and scale of US document demands, and would often reject them on grounds of overbroadness even without privacy restrictions. Looked at the other way, EU companies want to trade with US ones, and it is hard to argue that they should play by their own rules in US courts. That, however, is what EU law appears to impose, and it takes skill, knowledge, technology and early focus to find acceptable ways round this.

Towards the end of the session, we turned to conflict of laws rather than of procedure, considering things which sound theoretical but which represent daily issues for many, under the broad heading Does the location and routing of data create jurisdiction? US lawyers are familiar with this because questions of state jurisdiction arise all the time. In international terms, there is a difference between jurisdiction over the issues and parties and jurisdiction over the data. The only sensible course is to take advice in each potentially relevant jurisdiction.

As I say, I will happily do more of these. The quality required for remote conferencing on this scale is still, I suspect, quite expensive, mainly because of the need to display the remote speakers on a large screen in a big hall. My ISP will shortly roll out fibre-optic broadband for business users – it is already available for domestic users in my area. Skype already offers multi-user video for a modest fee, and Google has recently extended the capability of the shared video facilities in Google+. It will not be a substitute for heading down to my second office at Heathrow’s Terminal 5, but it will become a useful supplement for that.

My thanks to the ABA’s Section of Science and Technology Law for the invitation to take part in this, and to Squire Sanders in London for both the access to the technology and the considerable amount of organisation which made this event possible.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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