In a previous article, Legal IQ makes a success of their Washington eDiscovery Exchange, I gave the background to Legal IQ’s recent Information Governance and eDiscovery Strategy Exchange, together with a little local colour. The latter, incidentally, is more than mere travelogue. It is perfectly possible to jet into someone else’s country, take part in a panel and jet out again, and sometimes I have to do just that. I prefer to spend a little time there, not kidding myself that I thereby become anything more than a casual visitor, but at least absorbing a little of the culture and feel of the place.

This event packed a lot into two-and-a-bit days. I could not attend every panel, but I got to most of them. What follows is what appeared to me to be the key points from those which I attended.

Tackling cyber warfare, improving enterprise security and reducing risk

Christina Ayiotis of the Department of Computer Science at the George Washington University opened the show with Stewart Baker of Steptoe and Johnson, Trent Temeya of the FBI’s Cyber Washington Field Office, and J Michael Gibbons of Alvarez & Marsal.  The clear message here was that if  you are a large organisation and you do not know of security breaches, probably state-sponsored ones, then that does not mean that you are immune, just that your detection systems are not good enough. Many companies first learn of the attacks on them when the FBI shows up at the door to tell them about them. A few days later, at a dinner at my old Oxford college, I met a weary-looking man who was not in the best of humours. He had spent all day dealing with the consequences of a cyber attack on his company’s systems. Christina’s panel did not exaggerate.

Legal are from Mars, IT are from Venus: Closing the gap between Legal, IT and Records Management

Mark Kindy of Alvarez & Marsal, the conference chairman, led this panel, which comprised Justice John Sackar of the Supreme Court of  New South Wales, Elizabeth Adkins, Director of Global Information Management at CSC, Jason Baron of the National Archives and Records Administration, and David Horrigan of 451 Research.

The focus was on companies’ internal systems, beginning at the end, as it were, with the degree of judicial concern about the way companies keep their documents.  This varies from jurisdiction to jurisdiction but, as the panel made clear, companies have – or ought to have – common interests in minimising  and controlling the volumes of potentially disclosable data. Jason Baron, fortified by the very positive steps taken under President Obama to move towards electronic document-handling in government where possible, was emphatic that the Mars–Venus conflict could only be resolved by carrying the arguments to the C-Suite. It is only at that level that the disparate interests (and budgets) of departments could be seen as a company-wide problem, not as a purely departmental issue.  David Horrigan said that the relationship between IT and legal had fundamentally changed: the external law firm used to be the driver, and it was down to them to organise the vendors, the hosting requirements etc. Now the corporate legal department is in the driving seat, David said.

The Federal Rules of Civil Procedure assume that a party knows what data it has got, where it is and how to get it. The rules in some jurisdictions (the UK, for example) are bringing a closer focus on the collection and exchange of this kind of information. It was now necessary for parties to work more together, and with the court.

Keynote address by US Magistrate Judge Andrew Peck: eDiscovery issues of our time

The description of Judge Peck’s keynote included “privilege, preservation, proportionality and ethics” and, as he always does, Judge Peck gave us succinct and practical advice on all these headings. I will pick the one which has the greatest potential to reduce the costs of eDiscovery – if you do not need a document for business purposes and if it does not relate to actual or anticipated litigation, throw it out. Why are companies keeping so much data when, however low the storage costs, the the eDiscovery ramifications are so severe?

One knows the answers, Judge Peck said – people do not want to spend time on something which has no apparent ROI; they are conservative, and having read the sanctions opinions, do not wish to be on the receiving end of the sanctions motion whether or not they win it. Quite apart from the express safe harbor from sanctions in rule 37f, most sanctions arise as a result of conduct which is “extreme”. There is no logic, and much expense, in keeping everything because someone else got sanctioned for “extreme” conduct.

Proportionality includes the assessment that the cost of giving discovery from an ESI source will be greater than the value of what might be in there. Lawyers and judges need more and better education about how to manage this, and Judge Peck foresaw a greater role for judges in active management of discovery. The amendments to the ABA Model Rules are not binding yet, but who can argue with the idea that lawyer competence is compulsory in the area in which they practice? the Model Rule amendments refer expressly to the technology implications of eDiscovery.

Working smarter, working faster, working cheaper: what does predictive coding really mean for your business?

Mark Kindy of Alvarez & Marsal led this panel with Judge Peck, Mike Klein of Altria, Maura Grossman of Wachtell, Lipton, Rosen and Katz, and Patrick Oot of the SEC and the Electronic Discovery Institute.

Here is another subject  with infinite ramifications, most of which were covered by this panel. With my target of picking only one or two points per session, I go for those which relate to comparisons between the results of a predictive coding exercise and other ways of reducing the pile for review:

• Get the vendors to run their predictive coding tool against your closed case to see how the process works and whether you get the same result, a better or worse one.
• Use predictive coding for quality assurance – to look for examples where predictive coding and your own methods disagree.
• You are not looking for perfection and the so-called gold standard of human review is far from perfect – hold manual methods and technology to the same standard.
• Vendors – help us to get you in the door by sending us a better result not just by savings, because cost is not the most significant point.

That last quotation perhaps needs some explanation: the context was the doubts amongst the more nervous lawyers over the quality of the output in circumstances where alternative methods are going to be expensive anyway. In a defensive community – and major corporations and their lawyers are inherently conservative – the main issue is quality not cost.

Failing to Prepare is Preparing to Fail: everything you need to know about managing discovery in the cloud

The panelists for the session were Judge Herbert Dixon of the Supreme Court of the District of Columbia, Allison Stanton, Directory of eDiscovery at the Civil Division of the Department of Justice, and Greg Looser, formerly SVP and Chief Administrative Officer of Pride International, Inc.  If I have a problem reporting this panel, it is because pretty well everything said by all the panelists is worth reporting. I will content myself with what was said by Allison Stanton, one of the few panelists I know whose extempore sentences need no sub-editing – all you have to do is write down what she says and you have a fully-formed article.

Data, Allison said, is “cheap to store but expensive when I come to town, or the lawyers or shareholders do”.  It is easy to focus on the apparent cost savings of a cloud contract – sometimes they are neat-looking, short documents which refer to a “constantly-changing contract with its terms on a website and no provision for notice when the terms change”. Who are you contracting with – the cloud service provider or an intermediary? Who has responsibility for legal holds? What provisions are there for collection of data – how, indeed, do you get the data out at all? If you think it hard to get information from your own IT systems, what happens when all you get is an answering machine?

This this is all basic stuff isn’t it? Isn’t it? I mean, you would think of all that, wouldn’t you, when someone dangles a low-cost cloud contract in front of you? If your data citizens are badly-organised now, moving to the cloud is not going to make it better. Vivian Tero added another point – the commingling of data may result in the whole lot being seized by the government, raising privacy implications amongst other things.

Proactively managing the rising costs of litigation

This was one of my panels and cost control is one of my pet subjects. I had as panelists His Honour Judge Simon Brown QC, Specialist Mercantile Judge in Birmingham UK, Marla Bergman, VP, Assistant General Counsel and Internal Audit (note the bracketing of those functions) at Goldman Sachs, Elizabeth Harris of Allocatur Consulting in Australia, and Andrew Goodman of QuisLex.

Simon Brown led with a description of the costs management regime which is coming into force in England and Wales in April 2013. Parties will be expected not only to discuss their sources of data and the methods which they intend to use to limit disclosure, but also the costs of doing so. How would you do that if you have no metrics from past cases and no idea about the available solutions, their costs and the potential savings which they bring?

Marla Bergman said that she keeps metrics on everything. She knows average volumes per custodian and the typical costs of managing each stage of the process, enabling her to see instantly whether an estimate is in line with the norm The metrics do more than that – if you know the numbers then you are equipped to argue for what is proportionate, and better able to beat off extravagant demands for broad or excessive discovery by reference to past experience.

Elizabeth Harris’s expertise lies in project management of big eDiscovery exercises which, again, it gives her the ability to extrapolate from experience when confronted by the volumes and timescales which eDiscovery brings.  QuisLex provides third-party resources both human and technological, and are well used, Andrew Goodman said, to giving estimates with “not to exceed” numbers in them.

The theme which emerged – and this was not pre-planned – was that you get more from proper planning than mere predictability, however important that is on its own. You get the arguments at your hand to use against opponents and the court, and thus the opportunity to shape discovery / disclosure as you want it. Those preparing to face costs managing judges in the UK will take note of this.

EDiscovery in 5 Years: how will technology developments and market consolidation affect your business?

This was the analysts panel, assembling Jason Velasco, CEO of the Discovery Channel, Brian Hill of Forrester Research, David Horrigan of 451 Research and Vivian Tero of IDC – as influential group of people as you could hope for.

I can get away here with simply reciting the key words and phrases which turned up during the course of an entertaining and informative panel. The increased role of the service provider. Defensible disposition. Content maps and dashboards. Knowing (at the least) what repositories you have got. “Discovery will get its name back” (that is, we will drop that wretched “e-“). Social media. BYOD. Cloud. Mobility. Big Data. Predictive coding is not going to take lawyers work away. Whose role is it to know what data exists where? Vendor risk management (that is, who exactly are you dealing with and who holds your data). Focus on benefits not just cost and risk. Productive use of data for strategic advantage – how to advance the mission of the company.

Get your head round that lot, and you are ready for the next 5 years.

The Same but Different: eDiscovery procedures in different jurisdictions

This was my judicial panel with HHJ Simon Brown QC from England and Wales, Mr Justice Frank Clarke from Ireland, Justice John Sackar from New South Wales, Judge Herbert Dixon of the Supreme Court of the District of Columbia, Judge David Waxse from Kansas, all joined at short notice (because he was there and is a good sport) Judge Andrew Peck from the Southern District of New York.

I do not do scripts for panels of this calibre, content to throw out the questions and wait to see where it goes. For fairly obvious reasons, I do not write down what they say (which would be the equivalent of a rugby referee writing a match report whilst rushing round the pitch). Jason Velasco was taking notes and we can hope for an article from him in due course.

Unsurprisingly, our focus was on court-led management which is expected, and increasingly so, in England and Wales, Australia and Ireland. Judge Peck had  foreseen in his keynote speech that we would see greater emphasis on judicial management in US courts, and it was this which gave this section its relevance to a US audience.

Judge Brown told of the eDisclosure Practice Direction of 2010 and its Electronic Documents Questionnaire, both focused on forcing parties to gather and exchange information about their sources. He took us on to the rules due to take effect in April 2013 First comes the “menu option”, which deprives judges of the easy option of ticking a box for “standard disclosure” and forces them to decide what disclosure – from none at all through to US-style train of inquiry discovery, is appropriate for the case. Then costs management and budgeting will require numbers to be put alongside the proposed stages, and the test of “necessity” will be replaced by an all-out focus on proportionality.

Justice Sackar (seen left) told us about the New South Wales Practice Note SC EQ 11 which took effect in March 2012.  There will be no discovery at all until the evidence (pleadings, affidavits, witness statements, reports etc) is exchanged, by which point everyone should be pretty clear what the issues are and what is needed to prove or disprove the case. Any subsequent discovery must be justified on affidavit. The effect is that the court works outwards from the minimum discovery rather than inwards from the maximum scope of disclosure.

Judge Peck expanded on his point about closer management by judges. Judge Dixon picked up the reference in the Sedona Conference Principles on International eDiscovery, which recommends narrowing the scope of disclosure right from the outset. That is essential when faced with, say, the EU data protection and privacy regime but surely has application in any case? Judge Waxse focused on cooperation, enforced by the court if necessary. Mr Justice Clarke talked from the viewpoint of a jurisdiction in which comes late to the eDiscovery party and was probably the better for it in the sense that it could observe developments in other jurisdictions. A practice guide is being evolved, thanks to cooperation between lawyers,  judges and providers; whilst this will not have the force of law, departures from it will have to be justified.

Conclusion

I do not really apologise for the length of this article. This event was packed with good speakers covering important topics in an entertaining way. One of the notable features of the event was audience participation – we had a good flow of questions right from the beginning and were taken as a result into the subjects which people really wanted to hear about.

Legal IQ is ambitious for this event, aiming to repeat it, and probably more than once, in the US next year. If they can maintain the standard with which they began in September, that ambition should be within their grasp.

There are some photographs of this event here.

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