This is a continuation of a series of roughly chronological mini-posts following my recent visit to Hong Kong.
Craig Carpenter of Recommind was the moderator of a panel comprising Browning Marean of DLA Piper, Jeff Lane, a partner at King & Wood, and Alfred Wu, a special counsel with Fried, Frank. The session’s formal title was Fitting defensible collection into legal, risks, compliance and governance strategies. It was this panel, more than any other, which highlighted the differences between the US and and other jurisdictions. You could almost hear the sharp intake of breath from the US people present as Jeff Lane described the discovery duties of a lawyer in a jurisdiction which does not treat every opponent as untrustworthy, handles very few cases electronically, and has no formal concept of legal hold, but seems somehow to get by as we do in the UK.
Was it something I said? Close inspection of their eyes shows that it is not me at whom they are staring so intently.
Although Hong Kong courts think of of themselves as high-tech, and although Hong Kong has a technically responsive society, a review of the rules in 2009 did not make specific provision for electronic discovery. 99% of Jeff Lane’s cases do not involve eDiscovery as between the parties, although technology may be used as between lawyer and client to establish what exists and to refine and collect it. The court has discretion to approve or order any method it thinks appropriate for giving discovery; one of the court’s aims is to encourage a less adversarial approach.
The solicitor has a duty to ensure that documents are not destroyed or deleted and must sign a certificate to the effect that everything relevant has been included – something a US lawyer would baulk at, as Browning Marean observed. The court will draw adverse inferences if discovery is defective but cases of abuse are very few.
The lawyers’ duties under the US Federal Rules of Civil Procedure appear very onerous, and millions of dollars are spent not only ensuring that every electronic scrap is collected, analysed and reviewed but in trying to wrong-foot opponents for defects on their part. They like to sneer at the rest of us, who rely far more on the duty owed by the lawyers to the court as well as to opponents. Whose duty is higher, as between these very different approaches?
In response to the normal US reaction from the floor, Jeff Lane said he was keen not to make Hong Kong appear backward. Craig Carpenter observed that many of the US comments “came from a position of envy”. My own conclusion is that this approach to litigation is not supportable and that Hong Kong must move towards more court-directed control of electronic documents both from a cost point of view and in order to find the evidence. Unsurprisingly, perhaps, I think that the UK model is the one to work towards, with our eDisclosure Practice Direction, the Electronic Documents Questionnaire, costs management and the pending Rule 31.5 menu option as key components supporting judicial discretion.
New Zealand, Australia and Singapore also provide precedents worth considering. There is a big market here for the software which has been designed for the demanding US market; it will not be won by the marketing language of the US.