If you want a rounded account of IQPC’s successful Information Governance and eDisclosure Summit in London this week, this is not the place to find it. I was involved in five events over the three days and spent most of the rest of the time talking to providers, judges, lawyers and in-house eDisclosure people from law firms and their clients, attending very few sessions as a result.
The nearest you will get to a narrative account can be found by looking for the #infoGovSummit hashtag on Twitter and particularly the tweets of Recommind @Recommind, Barclays’ Matt Ward @_Matthew_Ward_, and the ever-reliable Andrew Haslam @AndrewHaslam (winner of the event’s tweeting prize).
FTI Technology Panel
It began for me with a workshop led by Craig Earnshaw of FTI Technology at 8:30am on Monday morning. Our subject was When Volumes get Large: How to Keep Control of Your eDisclosure, which was kicked off with talks from Glen Greenland and Ian Smith of FTI and then taken up by a panel comprising Matthew Davis of Hogan Lovells, Jean-Bernard Schmid of the Geneva Public Prosecutor’s Office and me. No eDiscovery exercise, whether for civil litigation, or for an investigation for regulatory, criminal or internal purposes, ever ends up smaller than anticipated. What resources, of people and technology, do you bring to bear in a way which remains proportionate whilst scaling up to meet new developments? The subject was deliberately broad, and swept up a range of challenges from pure volume to time constraints to privacy and all the other wrinkles which are recurring features of exercises which are increasingly global in nature.
The most memorable moment had nothing to do with the primary subject – or perhaps it did. Craig Earnshaw asked for the most extreme example of geographical remoteness encountered by the panel. No-one sought to compete with Matt Davis’s reference to Hogan Lovells’ office in Outer Mongolia, neatly emphasising that there are no geographical limits any more.
Dinner with Nuix
A dinner hosted by Nuix on Monday night gave me another example of projects which turn out bigger than anticipated, as well as an object-lesson in the value of actually reading one’s e-mails. I had been asked to say a few words along with Vince Neicho of Allen & Overy, Mark Surguy of Eversheds and Jim Kent of Nuix. The final e-mail confirming this actually referred to a “lively discussion with a panel… moderated by Chris Dale” – singing for my supper had turned into a full-blown opera. I was very pleased to do it.
No rule or duty requires us to keep everything, I said. Studies on both sides of the Atlantic showed that many companies do not know what they spent on eDiscovery last year and therefore have no way of measuring its total cost – the standing costs of keeping data which no one will ever need and the reactive costs of ploughing through it for discovery purposes. That in turn means that they cannot begin to calculate the RoI of pre-emptive action. Many factors appear to militate against deletion, and a misreading of the recent West African Gas Pipeline case in the UK courts might induce fears parallel to the US terror of sanctions. In both jurisdictions, it would pay actually to read the cases before concluding that safety lay in keeping everything – if anything, the scope for error, or of simply being overwhelmed by the problem (to say nothing of the expense), lies more in excessive retention than in defensible deletion.
What could companies do differently? They could review the balance between the in-house and the out-house resources available to deal with the issues including, for example, external managed review; they could keep up with new technology; they could make sure that their lawyers focus on real objectives as opposed to plodding through disclosure exercises as if they were themselves a business objective; they could “encourage” their lawyers to cooperate instead of fighting in every procedural ditch – I would have pointed in this context to US Magistrate Judge David Waxse’s recent excellent paper on cooperation even if Judge Waxse had not been present, as he was.
By chance, I was sitting opposite the man who best illustrates this approach. Bob Lewis of Barclays Bank is eloquent on the ways in which companies can take control of eDisclosure, using a mixture of in-house teams and technology and closely-monitored external resources. He took up where I left off, with Mark Surguy, Vince Neicho and Jim Kent contributing the different perspectives which come from their respective roles in the process.
Interviewing Professor Dominic Regan
For my next event I had the pleasure of introducing and interviewing Professor Dominic Regan, whose session title was 2012 – the most significant year in the history of eDisclosure? The management of electronic documents is but one component of Lord Justice Jackson’s wide-ranging reforms. Dominic makes eloquently the case that contingency fees, costs management, and more active judicial control of cases have the potential to encourage companies to bring and defend civil claims; some of these things will root out inefficient lawyers, while presenting opportunities to those who are willing to work efficiently in a regime which, unlike the present one, will reward those with the skills of project management, costs estimating and risk assessment in addition to legal skills.
Dinner and Multi-Language Discovery with First Advantage
Dinner that night came courtesy of First Advantage Litigation Consulting, which brought another object lesson; listen carefully when somebody introduces himself, because if you catch the surname as well as the forename, it may save you from asking the CEO questions like “and what exactly do you do at First Advantage?” Whatever it is that Andy Macdonald is doing seems to be working as First Advantage grows its business, both organically and by the recent acquisition of DLR Legal. FADV entertains as well as it manages multi-language discovery exercises, the subject of Drew Macaulay’s helpful session the following day.
UK-US Judicial Panel
Andrew Szczech of Kroll OnTrack took charge of the judicial panel which opened the second day, with Senior Master Whitaker, US Magistrate Judge Frank Maas and US Magistrate Judge David Waxse.
They covered a lot of ground, including the rise of predictive coding. Some tweets give you the flavour of their comments about Master Whitaker’s contributions:
Senior Master Whitaker emphatically endorsing don’t need to know how the technology works. It’s methodology first.
#PredictiveCoding not perfect but error rates are as acceptable or equal to human review. Both equally prone to error.
Master Whitaker: use of #predictivecoding a pragmatic, proportional approach
Master Whitaker warning that fighting against the use of technology will not be viewed kindly by the judiciary.
Master Whitaker: Vendors should emphasise the savings of #predictivecoding technology
…and from the subsequent technology session we got this from Andrew Haslam:
Questions from the floor show lawyers still believe that human review more accurate than CAR. Give us strength to fight this.
Between them, the three judges covered the importance of process, training and a sensible protocol, the need for proportionality, the evil of “bad science”, and the stupidity (my word, not theirs) of challenging failure rates which are a fraction of those which are taken for granted with manual review. The seniority of the lawyers is less important than their understanding of the case and its issues, and transparency and co-operation are critical to success. It would help if the lawyers who shy away from this technology would at least try to understand the basic premises – Master Whitaker has come across people (as I have) who think that the purpose is to hand over documents unread. How anyone could conclude that from the providers’ marketing materials is beyond me and, to re-use Andrew Haslam’s line quoted above, “give us strength to fight this”.
The single most important thing said at this panel, to my mind at least, came up during Master Whitaker’s analysis of the West African Gas Pipeline case. Three or four things went wrong, he said, in a large and diverse collection exercise. It was “an unfortunate set of circumstances” which should “not be taken as a guide for how courts will react” when mistakes are made. Some errors are “just errors” and should not inevitably give rise to substantial costs penalties. Anecdote suggests that providers are now being asked to pick holes in opponents’ disclosure. Master Whitaker did not say, but I will, that this is the slippery slope towards US-style discovery which has become an expensive battle-ground almost wholly divorced from the pursuit of justice. We will need case managing judges to sit firmly on such conduct.
The Judicial Play
It has become a habit at this show for me to write a short play to be performed by the judges. It is necessary for me to stress at the beginning of it that “if any words uttered here have ever in fact been uttered by any person then that is both coincidental and rather sad” and to make it clear that the judges “have been invited to this conference, and to many others, because they know very well what is right, and I would not want you to confuse the parts which they play with their real lives.”
We had the Americans observing on how some words have completely different meanings in England – “drought” for example. Master Whitaker presided over a mock CMC which left him reading out the traditional form of death sentence instead of the critical judgment he intended; part of the text for this section was lifted straight from the judgment in Phaestos v Ho. A skit on one of Judge Waxse’s famous orders that a meet and confer should be recorded on video had the parties playing to the camera as if on X-Factor; a lawyer’s six-year old daughter brought about an agreement by observing on the stupidity of the arguments about file formats and custodian numbers. Two American lawyers knew that Europe exists (“I’ve flown over it”) and were puzzled by the fact that France is now ruled by Holland – Francois Hollande, the judge explained; they demanded discovery in what the English judge described as “the usual form”, namely “Hey Limey, tell these guys to send all their documents pronto or I’ll sanction them till they bleed”. Lastly, they all declined to take part in my adaptation of the Da Silva Moore case, “set to music… and with a running time of just under three hours”.
As always, I cannot thank the judges enough for agreeing to take part in this, and for doing so with such gusto.
Social Media Panel
The essence of social media, I said in opening this panel, is that no-one is in charge, no-one knows who is coming, and it is anybody’s guess as to what will be said. That, I explained, just about described a panel from which one member, Patrick Oot, was unavoidably absent, leaving me to rope in Bill Belt of LeClairRyan and Mark Surguy of Eversheds at short notice to support me and David Shonka of the Federal Trade Commission, who was in the intended cast.
I skated through a wide definition of social media – “social” implies allies rather than necessarily leisure, and the distributed means of creating, storing, and publishing one’s possibly half-baked thoughts had dangers both for the individual and for an employer. I gave some US and UK examples of the kind of trouble which might result, and mentioned the conflict which may arise between an employer’s policies and the rights of privacy and self-expression.
David Shonka took us further into the policy implications, with a real-life example of commercial consequences arising from an incautious Facebook posting. I asked Mark Surguy and Bill Belt to take us through the present state of understanding of lawyers and their clients in their respective jurisdictions and through the need for lawyers both to spot a problem when it has arisen and to advise clients of pre-emptive steps which they might take.
To the tweeter who said “even lawyers are aware of FB, Twitter & LinkedIn, aren’t they?”, I say yes, they are – they use them every day. They have some way to go, however, to appreciate the potential implications, and if their knowledge runs no further than these rather obvious examples then they have problems in store.
This was a lively and informative conference, with some new faces in the audience in place of the “usual suspects”. Although I attended few sessions apart from my own, I looked in to others and found them generally well attended.
As always, IQPC had a big team on the ground which helps to ensure smooth running. The venue was one of the best once you were there, but I have mixed views about running events like this so far from the City – Gloucester Road may not be the outer suburbs exactly, but getting there depends on the operation of the Circle Line, a railway run by incompetent people who think that service is an optional adjunct to the provision of public transport.
I can see a reason for having an “Exhibition Stage” for people who want to see the providers and attend a few side-sessions. This one did not work – a dark, poky little hole where one’s carefully chosen words were drowned by the chatter outside. People who work hard to prepare presentations deserve better than that. The fault, I think, lay with the venue rather than with IQPC, who were themselves expecting something rather better.
The only real issue was time-keeping – I would supplement the system of notices held up at the back of the hall with some device which gives the moderator a sharp electric shock one minute after the advertised ending time. Over-running is not fair on the audience, not fair on the following speakers and not fair on the exhibitors who are entitled to expect defined time-slots when they might see visitors. I missed demo sessions by both Nuix and kCura as a result of time slippages.
At a personal level (and no fault of IQPC’s) I could have done without having this show sandwiched between two Las Vegas events. But for that, I could have stayed in my pleasant 63rd floor room in Las Vegas and cleared my backlog. I had the novel experience of having to get up in the dark when the lights failed in my hotel room and the not so novel experience of ordering (and paying an extortionate price for) a hotel espresso and finding it both cold and vile. They get away with it, of course, because the English meekly pay up without complaining.
These points, as I say, are independent of IQPC’s considerable efforts in putting the show together. This remains the one to beat in London.