I have written an introductory piece which gave a context to the excellent eDiscovery Ireland 2012 conference which took place last week in Dublin – see eDiscovery in Ireland – coming from behind gives opportunities to get it right. The overall message from that is that there are opportunities for a jurisdiction which has litigation of all sizes, from major financial, governmental and commercial disputes downwards, to devise rules and procedures specifically to focus on case management generally and the costs of electronic discovery specifically. The latter can often consume more than half the total budget for a case, and there is growing awareness in Ireland that its management cannot be left to drift following rules devised for a different age.
In this article, I summarise the main points made in the sessions which I attended. My earlier article distilled some of the overall conclusions from the day. Most of them are applicable in any jurisdiction.
Primer Session: Introduction to eDiscovery – Dr Vivienne Mee of Rits Computer Forensics and Lisa Broderick of DAC Beachcroft
I did not attend this session, but I commend the idea of introducing a conference with such a primer, and in any jurisdiction. It would be easy to assume, for example, that all US lawyers and judges spring fully-formed into a knowledge and understanding of eDiscovery principles and that they all start from some higher level than the rest of us. That is far from the case, and pitching things at the right level for the audience is one of the challenges of speaking on the subject. An introductory session allows the subsequent speakers to assume at least a minimum level of knowledge.
One year on – the Changing Face of eDiscovery–The Hon Mr Justice Frank Clarke
The “year” referred to in the title of Mr Justice Frank Clarke’s session is the twelve months since the first eDiscovery Ireland conference, a year which has seen his elevation to the Supreme Court and the development of a procedural guide on discovery which is almost ready for publication.
Mr Justice Clarke opened with what may be the single most important point to get across to lawyers. Studies in the US have shown that, properly used, technology is more accurate than manual search and review (with the emphasis, of course, on “properly used”). We need to develop more trust between lawyers and IT professionals and it may be that some research could be undertaken on Irish cases which would develop the necessary degree of trust.
Mr Justice Clarke’s second, and equally significant, point was that no system is going to be perfect. The obligation, as a matter of law, is to take all reasonable steps, and innocent mistakes are unlikely to have serious adverse consequences.
Parties may be risk of not recovering the costs if they did not use the best methods, he said, and “best” included cost considerations. It is open, he said, to a party to say “You did it in a stupid way. Why should we have to pay €600,000 when you could have done it for €250,000″.
Mr Justice Clarke warned of increasing scrutiny from the court on a range of subjects, including the availability of documents which ought to be the subject of discovery. The court can make orders only in relation to events following the commencement of litigation. The cloud, mobility, the growth of BYOD (Bring Your Own Device) all related to decisions prior to commencement. That was not an argument for keeping everything – far from it – but it is necessary to manage information in a way which takes account of potential discovery applications because the court is not likely to be sympathetic to claims that previously-chosen methods make it too expensive to retrieve information.
Mr Justice Clarke referred to the pending UK rules focussing on information being shared between parties and the court, and on court-approved budgets at an early stage in the proceedings. He referred also to the New South Wales Practice Note SC Eq 11 with its severe limits on the discovery which can be given. The Chief Justice, he said, was keen on having a review of the rules. The problem with formal rules, he said, is that they require a formal approvals process and necessarily have a certain rigidity which is not helpful when attempting to tease your way through developing issues. That is a reason for the development of the “Good Practice Guide” which has been worked up by a number of leading service providers and others. Good practice guides can be changed if part of them is found not to work.
No one listening to this could be in any doubt that changes will happen and that we will see a different picture emerging in the next 12 months.
Introduction to the Main Programme – Tom Gilsenan of Informa
Informa was co-presenter of the conference. My previous post has already milked to the fullest extent possible the potential from Tom Gilsenan’s video of his horse winning the Irish Grand National. More seriously, Tom Gilsenan gave us two quotations which are highly relevant, and not just in Ireland. He said
The less you know about your information, the more you have to pay to give discovery of it
eDiscovery is not an elitist sport
The first of these comments is similar to one which I made in my main talk later on in the morning. I showed a picture of a fork-lift truck and a pile of manure as an illustration of the way many clients deliver documents and data to the audience. They seem to expect, I said, their lawyers to undertake their information management in a hurry at lawyers’ hourly rates and then whine about the costs of the exercise. Tom Gilsenan’s sentence puts this more succinctly.
As to his “elitist sport” point, that goes to the idea that only big firms have the resources to manage electronic documents. That may have been true in the days when firms needed large teams of lawyers to read through documents. Technology and related outsourced services mean that small firms can stand toe-to-toe with big ones. The new elites are those who know how to manage all available resources, not those whose only claim is that they are bigger.
EDiscovery failings – Liam Kennedy of A&L Goodbody and Andy Harbison of Grant Thornton
Liam Kennedy and Andy Harbison opened their review of well-known eDiscovery cases with a line which occurred also in one of my slides – “There but for the Grace of God…”. Irish networks are the same as those anywhere else, they said, and Irish law imposes much the same penalties as other jurisdictions on those who fail to preserve and collect documents which might be required for litigation. It is dangerous, they said, to assume that the clients know what data they have got in circumstances where the people who stored the information may have long gone by the time it is needed. One needs to preserve against reasonably foreseeable eventualities and to remind others of that duty. Of all the components of eDiscovery, the collection is cheap.
Evidence in the cloud – Karen Reilly of Cernam and Chris Dale
Cernam’s business is the identification, preservation and collection of on-line data, which made this a natural subject for Karen Reilly. I was there, I think, because of my repeated emphasis on social media, in its widest sense, as a source of considerable benefit to companies, but one which must be constrained by policies as well as technology safeguards. I gave as an example my own telecoms provider who, earlier that week, had used its social media presence to turn an extremely disgruntled customer – me – into a willing advertisement for its customer services. Such benefits were accompanied by serious risks – I gave some examples – and policies must walk a line between maximising the benefits of new technology whilst constraining those risks.
Our focus was less on cloud contracts and the terabytes of data which may have been shoved thoughtlessly into the cloud, and more on everyday tools like DropBox, Google Docs, Evernote, iPads and smart phones which could creep around corporate security barriers. Lawyers with discovery duties must remember, I said, to ask their own clients about such devices as well as to place them on the agenda in discussions with opponents. As Karen said, one’s custodian questionnaire needs constant review to make sure that critical questions were not overlooked.
eDiscovery developments in the UK and elsewhere – Chris Dale
This was my main session. With only 30 minutes at my disposal, I concentrated on developments in England and Wales, New South Wales and the US, whilst making it clear that Singapore and New Zealand had also taken significant procedural steps this year. The developing rules in England and Wales focused on the early exchange of information, on early data assessment as a pre-requisite for early case assessment, on active management by the courts, and on case budgets. New South Wales, as Mr Justice Clarke had already said, had severely limited the amount of discovery which would be allowed at all.
Some jurisdictions in the US towards were moving also closer case management and towards proportionality as a governing principle derived from the Rule 1 obligation to focus on “the just, speedy, and inexpensive determination” of cases. Judge Andrew Peck’s opinion in Da Silva Moore may have been important as giving court approval to the use of technologies like predictive coding, but it was equally important for its emphasis on proportionality and (that point again) the fact that the rules do not require perfection.
Alternative approaches to eDiscovery – Karyn Harty of McCann Fitzgerald and Chris Dale
Solicitor Karyn Harty deals exclusively with complex commercial disputes and is known to have strong views on the standards expected from solicitors in conduct of cases in general and eDiscovery in particular. It is a compliment to say that I would rather have her on my side than be against her when issues arose as to the proper scope of discovery or the manner of giving it. My role in this discussion was to reinforce the point about the benefits of cooperation between parties as to the mechanics of discovery, however hard-fought the issues of principle in the litigation. I emphasised also – a point which recurred during the day – that perfection in discovery is an ideal which no one can afford; that does not excuse a lack of competence or (of course) any shortcomings in the frankness and openness which professional duty requires.
In the afternoon, two or three sessions ran in parallel, giving delegates the chance to follow their own interests. My choices were as follows:
Predictive coding – Mark Surguy of Eversheds
Mark Surguy spoke eloquently about the power of predictive coding technology which, he said, had come to his firm’s attention just as the volume of client documents became overwhelming. So far as Eversheds were concerned, eDiscovery was primarily a matter of project management. Predictive coding is not a magic solution nor will technology replace the role of the lawyer but it involves man and machine working together.
He described the use of technology as “teaching the system how to look at documents in the way lawyers do” so that it could decide “what is more likely to be relevant than not”. This, with its implication that the decision-making is provisional and subject to review and checking, is a more constructive and less threatening description then one often hears, an antidote to the fears that lawyers will be replaced by machines or that the duties of selection are being delegated to a “black box”. You are looking, he said, for meaning not just words, and additional skills are required; predictive coding will not work without cooperation between parties, which is something being encouraged by judges and filmmakers everywhere.
Eversheds is embarking on a program under which all its lawyers are to be trained by predictive coding provider Recommind. The aim is not that predictive coding should be used every time, but that the option should be considered.
Developing effective search strategies – Simon Collins of Ernst & Young and Rob Kenny of ZyLAB
This was an entertaining session which looked behind the wording of the of the rules and other marketing materials and at the discussions which should take place whenever a new eDiscovery problem arises. Simon Collins of Ernst & Young played the lawyer whose instinctive reaction is to print everything. ZyLAB’s Rob Kenny explained why that was not a realistic option and, through a question and answer routine, identified the parameters which Simon, as client, might feed into a search strategy to limit the provisional review set without risk of over or under inclusiveness.
The client’s opening position – “print everything” – would apparently have yielded four shipping containers of paper. By using various technology tools, this population was reduced to a level at which it made sense to begin human review, with duplicates removed, near duplicates identified, and with thoughtful use of keywords and other tools and techniques used to weed out, or at least relegate, material which was not worth looking at.
There was more to this question and answer routine than the technology – the opening question was “who were the really key people?”, and the discussion covered the good sense involved in sharing these discussions with opponents (“if you don’t, you are mad”). We could have coped with more than the 30 minutes allowed for this session.
Obstacles to obtaining discovery – barrister Ronan Lupton and Nigel Murray of Huron Legal
The “obstacles” referred to here were mainly those created by data protection and privacy regulations. The focus for US lawyers is, not unnaturally, the conflict between broad US discovery and restrictive EU data laws. As Ronan Lupton made clear, conflicts arise in purely domestic claims as well. He gave a number of case references which I will follow up separately, but one can see how conflicts arise at every turn between the openness which litigation requires and the restrictions of privilege and constitutional rights as well as privacy.
If I were to pick just one point of importance from Ronan Lupton’s talk it was a reference to an application which was rejected by the court because of the inadequacy of the explanation which accompanied the application. This is a common theme in applications to US courts at the intersection between technology, discovery rules and privacy restrictions. If you are going to argue about any of these points, let alone all of them, it pays to engage the services of an expert, and specifically one who understands local rules, as Ronan Lupton clearly does in his jurisdiction.
Huron Legal’s Nigel Murray has been involved in cross-border ediscovery and in the privacy implications since the two subjects came together with the 1995 EU Directive. The problem, he said, comes down to this: how do we provide data required in one jurisdiction without breaking the rules of another? The demands may be very broad, particularly if emanating from the US, and the restrictions are particularly tight in countries like France which have blocking statutes on top of the EU-driven data protection and privacy laws.
One needs practical answers to these questions as well as legal ones, and Nigel Murray spoke about collecting, hosting and reviewing data in-country with any subsequent export covered by the terms of a protective order designed to reconcile any conflicts which remain after in-country culling. He closed with a warning that whatever you do in the way of restrictions and limitations placed upon the use of the data in the current proceedings, the Patriot Act trumps it once it is on US soil.
A survival guide to US eDiscovery – Browning Marean of DLA Piper US
Despite its title, there was little in this excellent talk which was US-specific. Browning Marean of DLA Piper US talked of danger matched by opportunity, particularly opportunity for the young who could grasp the chance to acquire career-changing skills. He gave us the text of the relevant parts of the California Bar’s ethical duty of competence and diligence and showed that the wording of the parallel Irish rules similarly required sufficient expertise to advise the client competently. How could it not include an understanding of the electronic documents which every client now lived by and which turn up in every litigation or regulatory request?
He synthesised all the cases you have read into one poster reading “Clueless is no Excuse” – pure heart and empty head was not good enough.
We closed with a Q&A panel chaired by Browning Marean and comprising Mr Justice Frank Clark, barrister Pauline Walley SC, Cernam’s Owen O’Connor and me. I must reject one calumny which arose from that session. It was said afterwards that I was writing my next blog post on my iPad whilst taking part in the lively Q&A. Whilst I would love to think that such multi-tasking was within my powers, the points whizz by so quickly at these sessions that I need to capture them as they come. IPad = scratchpad for these purposes.
The anecdotal feed-back about this conference at the drinks party and dinner which followed was overwhelmingly enthusiastic. It is worth observing that the conference was not organised until September, and it takes considerable powers of planning and persuasion to round up sponsors, speakers and delegates, to say nothing of a venue and the rest, in that time. Its success reflects well, not only on Owen O’Connor, Karen Reilly and the rest of the people at Cernam and Informa, but on the growing body of providers, lawyers and clients in Ireland who can see that eDiscovery is an unavoidable feature of the civil litigation landscape. These are the early adopters, and are the ones who stand to win as new rules and increased client demands and a premium to eDiscovery expertise.