Those who skim articles rather than read them might conclude that this post is anti-US in tone. It is not – half my audience comes from the US and I am interested in balanced views not competing claims for purity. We all stand up for our own Discovery regimes; what we do in our own backyards is up to us. What matters in the context of cross-border discovery is that we will get nowhere if we treat the rest of the world as backward colonies who can be brought to the true path of eDiscovery by shouting our own merits at them.
Should I bother to reply to Ralph Losey’s recent article e-Disco News, Knowledge and Humor: What’s Happening Today and Likely to Happen Tomorrow? We are used to the idea that US lawyers think that their approach is the only route to “the whole pesky notion of truth and justice” as Ralph puts it, and that the “whole truth and justice approach that us Yanks have” is to be distinguished from the allegedly lax approach everywhere else. We are accustomed to the US idea that Yurrup is just one big place which has yet to learn the merits of the American way. We can give as good as we get, if we choose to, on the respective merits of our different systems and can attempt to understand what is different – not just in law but in culture – which explains our varying approaches to eDiscovery. If we are suitably objective about it, we can learn from others where that is appropriate. Or we can just write long blog posts rubbishing everybody else’s approach.
The reason it matters is that, at about the same time as Ralph Losey was pressing the “Publish” button in Orlando, I was at the Sedona WG6 Cross-Border and Data Protection Programme in Hong Kong arguing that we will make no progress in easing the path of trans-jurisdictional discovery if we simply shout our own terms of art at foreigners. As I put it in Hong Kong, never mind learning to speak Chinese – first you must stop speaking American and expecting everyone to jump to attention. It really matters very much to challenge the views with which Ralph Losey spatters his article.
Views like his were common in the US when I first went there eight or nine years ago, and they are ones which I, along with others (many of them from the US), have fought hard to contradict. eDiscovery provider Consilio, rightly referred to in complimentary terms in Ralph’s article, is a truly global provider, US-led but working in the UK, in mainland Europe, and in Asia-Pacific to deliver eDiscovery solutions to meet both local issues and US requirements. They well know what the problems are, and I owe it to them, as well as more generally, to show that skilled providers like Consilio can navigate the balance between competing jurisdictional demands. They don’t achieve it by just telling the locals that they are doing it all wrong.
I must be careful here: Ralph is a good enough bloke (I sat next to him at Recommind’s lQPC dinner in London); he likes a fight and wants to be edgy and provocative and I don’t have time for fights; he is nice enough about me in his article and I feel a bit of a heel demolishing his in reply, but there are wider issues at stake here. Ralph is kind enough to say of me “He is honest and tells it like it is”. Well, here goes.
Switzerland – that privacy stuff
Let’s start about halfway down Ralph Losey’s article in the middle of his passage about Switzerland – it is next to the photograph of Swiss Re’s Taylor Hoffman (a Sedona stalwart who was with us in Hong Kong) and opposite the picture of Ralph dressed as a parrot; it is at word 2,481 if you are counting.
Ralph talks about watching Joe Looby’s film The Decade of Discovery at Swiss Re’s splendid lakeside premises at Zurich (Sedona WG6 met there two years ago). He says this:
“[Swiss Re] also focus on privacy and cross-border issues, and seem to think we are barbarians when it comes to privacy. Since I do not really disagree with them on their privacy criticisms… I was able to dodge the daggers very politely thrown at Jason [Baron] and me.”
He says a bit about the film, has a quick sneer at mainland Europe’s civil law concepts of evidence, and goes on:
Notice how the movie poster says ‘Justice… is the right to learn the truth from your adversary.’ Who knew that is not a popular sentiment in Europe and the UK? We need to learn about privacy from them and they need to learn from us about the importance of full disclosure.
Despite this genuflection at the altar of privacy, Ralph Losey shows no sign that he understands that “full disclosure” in the American style flies directly in the face of concepts of privacy and data protection which are important to others. There is no recognition that the US is fortunate to have avoided those parts of C20th European history which involved one country pouring over the borders of others and imprisoning and murdering their citizens because their names appeared on lists as having the “wrong” religious, political or sexual preferences. There is no mention here of decades in which neighbour was set to spy on neighbour, and nothing about the reasons why what we now know about the NSA is provoking such an adverse reaction in Europe.
Craig Ball (see below) entertains and informs in London. The chaps behind him, tourists in a Paris which they have just over-run, are one of the reasons why Europe is concerned about the protection of personally identifiable information.
There is no sign either that Ralph recognises that the breadth of US “full disclosure” is spurned in other jurisdictions on grounds of proportionality and expense even before you reach questions about data protection. All we get is the reiteration of the idea that justice can only be found by discovery on the US model; everyone else, apparently, is just not doing it right and must learn to do better.
London: wigs and failure to “engage” or to laugh in the right place
Ralph Losey then moves on to a section called eDisclosure in London (starting at word 3,670 if you are still with me). There is a picture of the founding President of the Supreme Court of the United Kingdom in full fig – scarlet robes, big wig, gold chain and white gloves – offering the subliminal idea that the UK is more interested in ceremonial than evidence and is hopelessly behind the times.
Ralph’s first complaint is that the English audience did not seem “engaged” with The Decade of Discovery. Perhaps it was because it was raining, Ralph muses, but “maybe it was that whole truth and justice approach that us Yanks have”. So failure to “engage” with a film about ten years of somebody else’s discovery equates to disdain for truth and justice, does it?
After a quick poke at the UK term “eDisclosure” (appalling – they can’t even use the right word for it), Ralph Losey goes on to say this:
Also, and this amazes me, they do not take depositions over there, or least [sic] it is very rare. They just serve prepared statements on each other. That and produce the documents that they want you to see, and hide the rest. The barristers must be very skilled at cross-examination in their wigs.
Maybe it is unfair of me to dismiss this trivialisation of the UK Civil Procedure Rules as a load of thoughtless bollocks, but I’ll do it anyway. It is only worth powder and shot because that is precisely how many Americans vocally describe the rules of other jurisdictions when they march in to give effect to US eDiscovery requirements. “I have here the order of an American court” they say, and are surprised and hurt when Spanish data controllers tell them to fuck off.
Ralph Losey thinks we did not laugh adequately at Craig Ball’s jokes, making it sound as if Craig somehow failed to reach his audience (Craig hit it, square on, and his usual mixture of seriousness and levity went down well); Judge Laporte’s summary of the conflict between US rules and those of other jurisdictions was considerably more nuanced than Ralph Losey reports it (I know – it was my panel, and I chose Judge Laporte precisely for the balance which I knew she would bring to this difficult subject); I don’t particularly mind being described as a “retired Barrister” but I am neither of those things (I ceased practising as a solicitor more than two decades ago, but “retired” implies both leisure and a disconnection from the law – nice thought, but not yet).
In his closing paragraph, Ralph Losey says of the US and UK that “It is very important to both of our countries that we maintain a close relationship”. It is indeed; it is true also of the many other jurisdictions in which US discovery meets local rules and cultures which are different from those back home in Orlando; companies like Consilio who get their hands dirty actually doing cross-border discovery know this very well, and adapt accordingly.
The UK has a few rules of its own, and the rest of the world seems to appreciate them
I will resist the temptation to assert the merits of the eDisclosure elements of the Civil Procedure Rules of England & Wales – the Practice Direction which preceded the 2006 FRCP Amendments by 12 months; the ditching in 1999 of “train of enquiry” discovery as the FRCP will do later in 2015; the express primacy of proportionality and the judicial duty of active management, both in the UK rules since 1999 and both only now creeping into US discovery thanks to a handful of thoughtful judges; the civil procedure rules which every common law country except the US has accepted as the basis for their own. All this can speak for itself, and we do not need to crow on our dunghill about its merits.
Seeing the US rules as some objectively pure test of truth and justice
US courts and regulators are fully entitled to demand compliance with their rules by those who fall under their jurisdiction. Two sets of problems arise. One is that many Americans mistake their formal requirements for some objectively pure test of truth and justice; if you don’t require depositions, if you qualify the search for documents by proportionality, if you don’t fear sanctions for every perceived shortcoming in a precisely-defined legal hold process, if you don’t, God help us, “engage” with a film about the history of US eDiscovery, then you fall short in the quest for justice. Apparently.
The other is a disregard for the rules of others – not just privacy and data protection but broader local requirements. I once sat squirming with embarrassment as a US Discovery provider (not one with a presence in the region) lectured a room full of Hong Kong lawyers about legal hold. Hong Kong, like the UK, has no codified requirement for legal hold on the US model; that doesn’t mean you can destroy or conceal documents, but the test is a very different one and the culture (to say nothing of the in-house technology) means that a more delicate approach is required when explaining what a US court requires. This is not just politeness, or deference to local sensibilities – the audience simply did not understand what the speaker was talking about when they were told that they “must” do something. That particular speaker’s reaction was not to try and find out what concerned local practitioners but to reiterate the US requirements a little more loudly.
There is a big difference between Craig Ball’s carefully-argued suggestions about the benefits of competence in his London speech and Ralph Losey’s sneers at any country but his own. Craig Ball might persuade us down a route which is universal in its value, and neutral as to jurisdiction. Ralph Losey seems interested only in converting us to the American way.
Cross-border discovery implications
Most of what I have said so far is about comparative procedures. I stress again that US rule-makers, judges and lawyers may play as they please back home, just as they may say things like “it will likely rain” and apply the label “coffee” to any warm brown liquid. It is good that we have these cultural differences and that we are proud of our own things; it is good also that those US eDiscovery providers who have set up in the UK, Hong Kong and elsewhere have ditched the language of fear and suspicion which plays so well back home in favour of descriptions of the benefits of using the remarkable technology and the well-developed processes which the US has produced and which the rest of us are glad to use.
The collision comes where US discovery rules meet those of other jurisdictions and (important this) other cultures. Assuming that the US court or regulator has jurisdiction, is it right to say simply that US rules apply? That depends, as we lawyers like to say. It depends in part on whether you just parrot the top-line rules as if you were back home, without regard to their detail, to the cases or to the laws of others; it depends in part on whether you attach more importance to the rules than to your actual objective; it depends in part on whether you want to crash on the rocks of conflicting jurisdictional rules or just get the job done.
I will write separately about the Sedona WG6 event in Hong Kong. To anticipate my conclusion there, it is often possible to compromise between US demands and local restraints both legal or cultural, and to do so without giving up the search for Ralph’s “whole pesky notion of truth and justice”. The US rules as they stand, aided by The Sedona Conference Cooperation Proclamation and Sedona’s International Principles on Discovery, Disclosure and Data Protection, allow room for compromises which meet the true objectives of the US party, court or regulator when used by lawyers and judges who know what they are doing. It is the objectives which matter; banging on about the purity of the American way is not the answer.
Wandering into my line of fire
As I sit here blowing the smoke off the end of my pistols, I still feel a bit bad about pitching into Ralph when he was so nice about me. The problem is that he wandered into my line of fire in the very week that I was arguing forcefully in Hong Kong that the objectives of those seeking US discovery are best met by understanding the constraints which law and culture place on others, and then working out how the two can be reconciled. It is not always possible; it will never be possible while influential US commentators persist in the idea that the “whole truth and justice approach that us Yanks have” is a quality unique to the US and one which can only be attained by US procedures.