I wrote last September about the Information Governance and eDiscovery Strategy Exchange in Washington, commenting on the fact that an all-British team based in London had managed to run an extremely successful eDiscovery conference in the home of eDiscovery. The observation was not made out of national pride, or its reverse – I do not care who runs conferences as long as the content is good, the audiences come, and they give me plenty to do and a comfortable room. It was not intended, either, as implying any shortcomings in the other US conferences which I attend and enjoy. It just seemed remarkable that the Brits a) think of doing it at all and b) pull it off.
The same team has done it again, this time in San Diego, whence I have just returned. The content was even better than in Washington and the audience, if my anecdotal evidence is representative, felt they got good value from it. I certainly did. I was one of three chairmen – Christina Ayiotis of the George Washington University and Browning Marean of DLA Piper US were the others; I also moderated three sessions, one on metrics, one on in-sourcing and out-sourcing and the judicial panel, and took part in one on global data privacy regulations. I can’t complain at the variety.
How though, do you write up an event whose program was so packed with useful sessions? My first draft of this post said that I would not try, not least because the turnaround time between that event and the next one (to say nothing of the one after that) is too short to try and do justice to it all. When I finished dictating, I found that I had done it anyway, at least in summary form.
If I identify a handful of speakers on subjects which stick in the mind, that somehow implies relegation of the rest. Be clear that any of these sessions would have stood out at any event. I will focus instead (and very briefly) on the things which come to mind first when I shuffle my memory.
There was a very strong focus on the view from within the corporation. Marla Bergman of Goldman Sachs and Casey Flaherty from Kia Motors America gave very interesting accounts of the control which they exert as in-house counsel responsible for discovery. There is an expression “He / she did not suffer fools gladly” which often appears in obituaries, and not necessarily as a compliment. It has more positive connotations, however, of rigourous attention to detail and willingness to show who calls the shots, and both Marla Bergman and Casey Flaherty made it clear that they simultaneously call the shots and rely on the advice given to them by carefully-chosen external lawyers and service providers.
We got a different perspective, though no less rigourous, from Anthony Knaapen of Chevron and Raymond Smith of Sony Pictures Entertainment, who are responsible for managing the eDiscovery function in their respective corporations. I interviewed them together on the factors which influence the choice between in-sourcing and out-sourcing. As with my metrics panel with Marla Bergman, and as with Casey Flaherty’s detailed comparative spreadsheets, it all comes down to a careful keeping of the figures which are part (not all) of the steer towards one course over another.
The same kind of careful analysis appeared from a panel on BYOD moderated by Christina Ayiotis at which Mike Klein of Altria and Anthony Knaapen of Chevron described how they are managing the use of devices such as tablets and smartphones, whose introduction simultaneously brings greater productivity (in theory at least) but corresponding risk. Education and the introduction of stronger control policies is the only answer here, as the speakers made clear.
If you want to see the impact of international data privacy protection at its most extreme, then you need to listen to Gautam Sachdev of HSBC who, in a punchy session of his own and on a panel with me and David Horrigan of 451 Research, showed us what it was really like to run an international business subject to close regulatory supervision but subject also to differing privacy standards and laws in every jurisdiction. HSBC’s position is an extreme one, of course, but data privacy constraints apply to everyone, and Gautam Sachdev’s explanations were as clear a description as I have heard of what it is like to deal with them daily.
It was a particular pleasure for me to moderate the judicial panel. US Magistrate Judge Andrew Peck manages to be simultaneously consistent and fresh on the many panels which I have heard or taken part in with him. He was joined by US Magistrate Judge Mitchell Dembin, whose experience includes forensic investigations and managing a technology company. Unsurprisingly, perhaps, he finds that lawyers have generally got their act together before they appear in front of him, knowing (I infer) that he is in a position to challenge the often broad and woolly assertions which lawyers are wont to make on technology points.
The idea that parties should be accompanied by the client’s technology expert at eDiscovery hearings (“bring your geek to court day” as Judge Peck calls it) has the potential to cut through stories which either appear more complex than they need to be or (the opposite) get over-simplified.
Judicial sessions are never long enough, and this one was no exception. We cantered through the forthcoming amendments to the Federal Rules of Civil Procedure, the latest position on predictive coding, and the value of Rule 502(d) and clawback in relation to documents subsequently found to be privileged. By “value” we mean, as Judge Peck made clear, that any lawyer who fails to seek a Rule 502(d) order is almost certainly guilty of malpractice.
Pallab Chakraborty of Oracle told us about the predictive coding tests now in hand with the Electronic Discovery Institute. A great deal of work remains to be done, he says, but he is confident that results will be available by EDI’s conference in October.
There was plenty else to keep us amused and informed at an event which managed simultaneously to be packed and to allow plenty of time for talk – that “white space” which is so valuable at events like this, allowing people with different interests or at different stages in their evolution to trade ideas.
This conference had much else going for it on the practical side, including wi-fi which actually worked, espresso available from dawn and a passable facsimile of the real thing, at least by US standards, and an airport just down the road. I measure the success of conferences by what I learn from them, and I came away from this one very much better informed, particularly about the perspective of in-house counsel. If you have the opportunity to go to the Washington event in September, then do that, or go to the same team’s European event, in Munich in November.