I was back in Hong Kong recently, my third trip there in recent months. The primary purpose of this visit was to deliver a talk to the Hong Kong Academy of Law in the company of Epiq Systems. I went to some law firms with Epiq and visited a couple of companies in the company of Consilio, who also arranged a first-rate dinner. The result of a short visit is necessarily a snapshot, but that was my third such snapshot in a few months and they accumulate in value. It is a place which bears multiple visits.
The title of the talk at the Hong Kong Academy of Law was The Intersection of Law and Technology in eDiscovery. I shared the stage with Laura Kibbe, Managing Director of Expert and Professional Services at Epiq Systems – a treat for me, this, since Laura is one of the clearest exponents of the use of technology in discovery. We were introduced by Nick Chan, a partner at Squires Sanders in Hong Kong, who had arranged the invitation.
My role was to talk about the development of rules and practice in a range of jurisdictions which require civil discovery and (as the title of our talk implies) to show how technology developments and practical compliance with the rules intersect with and complement each other. By “complement”, I really mean that proportionate and defensible discovery cannot properly be given in compliance with the rules of any jurisdiction without at least some understanding of the available technology. The fact that the rules may not specifically require this (as is the case in Hong Kong) is really neither here nor there – there is a set of obligations to fulfil in relation to documents, and if nearly all those documents are electronic, then electronic means must be used to find and classify them if the costs of discovery are not to become completely disproportionate to the objective.
As part of this, I covered very briefly the range of technology solutions which exist, then handing over to Laura Kibbe who gave a short and punchy illustration of how predictive coding technology can be used to get through to the documents which matter, and to do so quickly and cost effectively.
The software which Laura was illustrating in her slides was Equivio Relevance, the predictive coding component of Equivio Zoom. I have seen many illustrations and demonstrations of predictive coding. This was the best by far, skipping through the stages which added nothing to the explanation and focusing on the interactions between software and user. I strongly recommend that you form an orderly queue and ask to see this talk.
In addition to the hard-edged summary of rules and technology, I was keen to get across two main points. One is that there is more to electronic discovery than technology. Technology is a core component, and every lawyer should understand what exists, what it can be used for, what it costs and what it can save. The process, however, must begin with old-fashioned question and answer, finding out from the clients what document sources exist and identifying who knows about them; similarly, the later part of the process, the document review, can be accomplished in more than one way. Outsourced managed review has multiple advantages, not least predictability and transparency of cost, and ought to be considered alongside the use of the firm’s own resources.
That second point, that technology and the processes around it including the availability of outsourcing, makes it perfectly possible for small firms (of which there are many in Hong Kong) to engage in large discovery exercises which might traditionally be thought of as the preserve of large firms. What is needed is someone with the legal, strategic and tactical skills, together with the ability to manage the project. You do not need large teams of lawyers for that, just the right allies.
Hong Kong sits at an interesting place. Its civil procedure rules relating to litigation are recognisably descended from the rules of England and Wales, at least as they stood before the Civil Procedure Rules of 1999. Hong Kong still has the Peruvian Guano test of relevance, that is, a wide test, similar to the US one, which extends not only to all documents “relevant” to the matters in issue but to train of enquiry documents – those which might reasonably be expected to lead to other evidence. At the same time, Hong Kong companies are often embroiled in US civil litigation under the Federal Rules of Civil Procedure, as well as being subject to regulatory oversight both by US regulators and by domestic Hong Kong ones. Lastly, Hong Kong sits at the junction between other Asia-Pacific markets (notably China) and trading partners in the US and EU, with resulting cross-border discovery implications. There are, in consequence, a great many well-known English and US firms with offices, some sizeable, in Hong Kong.
Many of those firms think it about time that the Hong Kong courts should adopt rules and principles relating to electronic discovery similar to those which have been found acceptable in other jurisdictions such as the UK, Singapore, Australia and the US. There is no obvious sign that the courts are willing to promote this, although it is said that there are one or two judges who recognise both that this is inevitable and that Hong Kong’s standing as an international trading centre requires it. As I see it, there is nothing to stop opponents in litigation from agreeing amongst themselves on the management of discovery so long as their agreement is consistent with the rules and their activities can be shown to be proportionate. That message is much the same as applies in the UK, where the new rules give opportunity for inventive lawyers and judges to shape new ways of minimising the cost of discovery in a ways which meet the overriding objective and are consistent with justice and proportionality.
Laura and I took much the same talk to a couple of law firms. It is always easier to get two-way discussion going within a law firm where everyone knows the others and can be relatively uninhibited about what they say. That is always more interesting than just talking at people.
I like to cover as much ground as possible when I make these long journeys, and was very pleased that Consilio set up a couple of meetings with companies for whom eDiscovery demands are a daily fact of life. These were meetings without agendas, opportunities for me to talk about what is happening around the world and, more importantly from my point of view, to learn what particular problems face companies based in, or with offices in, Hong Kong. I cannot stress enough that the purpose of these visits, so far as I am concerned, is to learn as much as to talk.
Consilio hosted a very fine dinner at a restaurant on top of a building overlooking Hong Kong Harbour. In addition to Paul Taylor and Barry Wong, who are Consilio’s feet on the ground in Hong Kong, my visit coincided with that of Robert Brown who is Senior Vice President EMEA & APAC at Consilio. The guests, most of whom I knew already, represented the pick of Hong Kong’s law firms whose practices involve eDiscovery. The conversation was as stimulating as the food and the view.
As with any other business, mine depends on anticipating where my sponsors (equivalent to clients in conventional business terms) will want to be next. Worldwide economic trends, quite apart from anything else, indicate that the Asia-Pacific region is an area for growth, and where economies grow, electronic discovery must follow. An eDiscovery culture does not spring up overnight, even if imported wholesale from other jurisdictions, and I see Hong Kong as a growing market. I will be back soon.
It was a particular pleasure to be accompanied on this trip by my youngest son, William. I am increasingly experimenting with audio, video and other ways of supplementing written and oral ways of getting messages across. William helps me with recording and the immensely time-consuming task of editing the results, as well as carrying the ever-heavier pile of equipment needed for recording. The results will take a while to produce, but the main thing was to capture the source material.