I have reported briefly in earlier articles the round table which I moderated in Hong Kong on 13 September at which leading eDiscovery lawyers assembled at the invitation of Epiq Systems and Thomson Reuters’ Asian Legal Business to discuss the discovery in the civil courts. Celeste Kemper, Director of Epiq’s Document Review Services Asia was in the chair.
The main interest lay in plans by the Hong Kong judiciary to produce an eDiscovery practice direction based on Practice Direction 31B used in England and Wales since 2010. A consultation draft is expected before the end of 2013.
We now have a report of that round table from Asian Legal Business in an article called eDiscovery: Wheels in motion for HK which passes on the key points made by some of the those who were present. The article is here and the whole issue of Asian Legal Business can be downloaded here.
Although Hong Kong civil procedure is largely based on that of England and Wales, the Practice Direction of 2010 (I was a member of the working party which drafted it) is part of a sequence of developments which began with the new Civil Procedure Rules in 1999. One of the key differences is the definition of a disclosable document – Hong Kong retains the Peruvian Guano test of relevance which, like the US Federal Rules of Civil Procedure, is very wide; the test in England and Wales is whether the document is supportive of or adverse to the case of the giver or any other party and that, and other rules designed to limit the scope of disclosure are picked up and expanded in PD 31B.
Whilst helpful in limiting the scope, these are not prerequisites for the success of a Hong Kong practice direction whose key components are (as the ALB article identifies) the exchange of information between lawyers and the courts as to what potentially discoverable information exists. Jonathan Crompton of Dechert expanded on this point at the round table and talked of the importance of involving clients and being familiar with their systems and with the metrics derived from past cases.
The key thing which emerged from the round table, as the ALB report emphasises by giving it a separate heading, is the importance of educating lawyers, judges, masters and registrars. Menachem Hasofer of Mayer Brown JSM emphasises that the consultation draft is intended to spur discussion not only on rules and broad principles but on the technology beyond key words – he refers to concept searching and predictive coding. Menachem Hasofer correctly observes that Hong Kong has the benefit of watching what has happened in other jurisdictions – a point also made by Mr Justice Clarke in Ireland, the judge who is supporting the recent Good Practice Guide to eDiscovery in Ireland (I wrote about that here).
This process of shared and parallel learning has been a constant theme of mine since I first went to the US in 2007. Since then, we have seen all the main common law jurisdictions whose courts require eDiscovery / eDisclosure borrowing from each other and observing developments elsewhere. I am obviously pleased to have had a role in this, and I am much obliged to Asia Legal Business and Epiq Systems for the opportunity to moderate the panel. I will come back to this subject as we find out more about the consultation draft.