This is my third consecutive post about the eDiscovery events which I have attended so far in 2016 (you can find the earlier ones here and here). The point, to reiterate, is not to suggest that my travels are of interest to anybody but me, but to pick out the themes which seem to matter to people in eDiscovery and its related subjects.
In diary terms, the events thus far in 2016 are, for the most part, the same as in every previous year, with Legaltech, Guidance Software’s Enfuse (formerly CEIC), the Nuix User Exchange, the Relativity Spring Roadshow and London IQPC (now IICE) all taking place at more or less the same time year after year. What changes is the subject-matter, as this series of posts demonstrates.
While there is some pleasure in continuity and in going to much the same venues year after year, it is good occasionally to go somewhere different. Mainland Europe has not hitherto been a fertile ground for eDiscovery. Civil law countries have no history of discovery in the common-law style and consequently little need for discovery skills and technology. It was interesting, therefore, to go to European cities twice in June.
The Sedona Conference Working Group 6 – WG6 for short – deals with issues arising in the context of cross-border discovery and, in particular, the data protection laws which conflict with US discovery requirements. Last year, WG6 met in Hong Kong, in recognition of the growing importance of US trade with Asia-Pacific countries as the latter rack up their data protection and privacy laws.
Several factors have conspired to bring the focus back to Europe this year – the pending General Data Protection Regulation, the invalidation of Safe Harbour and its (eventual) replacement with the Privacy Shield, the right (or not) of US authorities to reach into foreign data stores in the Microsoft Dublin case, and the fact that both the EU and several of its constituent countries have made privacy moves against Google and others – all point up the significance of mainland Europe and, in particular, Germany, in eDiscovery terms.
We stayed at the Hotel Adlon, close by the Brandenburg Gate. A few yards the other side of the Brandenburg Gate are the glass screens recording the work of Himmler’s Research Office for Racial Hygiene which I used as the opening for my article From Himmler to Theresa May to Trump to Microsoft + LinkedIn: why we need data protection. Visible from the Adlon’s windows is the remarkable Memorial to the Murdered Jews of Europe. It was a good place to consider the importance of protecting data and protecting privacy.
Sedona WG6 is the one event at which I attend every session and make copious notes. This is partly because of the density and complexity of the subject matter and partly because WG6 gathers an extraordinary array of experienced people to lead the discussions. As I write, the programme and the faculty are still up on the Sedona Conference website. It includes the brightest and best speakers on the subject from multinational corporations, courts, regulatory authorities, law firms and eDiscovery providers. The agenda serves as a checklist of the key elements which we should all be considering.
The sponsorship, by Consilio, Epiq, NightOwl Discovery and AlixPartners is discreet. These are companies with their feet in all the relevant regions, and they bring expertise as well as funding to the meetings of WG6.
The other feature of the WG6 Programme is that attendance is by invitation – you have to qualify by experience and knowledge to be there at all. Demand for places exceeded supply, an indicator of the importance of cross-border discovery and data protection.
Things are happening fast in this area: we now have a date for implementation of the GDPR, the original Microsoft Dublin ruling has been reversed on appeal, and the Privacy Shield has stuttered into life with a commitment from the EU to see how it goes before there is too much interference from Brussels.
My second involvement with mainland Europe in June came thanks to AccessData, whose forensics and eDiscovery software has long found a ready market in mainland Europe.
AccessData brings a certain style to its events, particularly in Europe – see my post here describing an excellent event I did with them in 2011 in a castle near Frankfurt.
This year’s tour involved events in London, Amsterdam and Frankfurt, and went under the title The cross-border quandary: when data transfer collides with data privacy. I was the moderator at all three events and the star speaker was US Magistrate Judge Andrew Peck.
Our team in London consisted of Myriam Gufflet of Promontory Financial Group, Jonathan Armstrong of Cordery Compliance, and Loretta Pugh of CMS UK
In Amsterdam we had Wouter Seinen of Baker & McKenzie in Amsterdam, Friederike van der Jagt, Senior Legal Privacy Counsel at AVG Technologies, Mark Hoekstra of Grant Thornton Netherlands and Kevin DeLong, Vice President of Mobile Forensics at AccessData.
In Frankfurt the team was Georg Kirsch of Bayer, Tim Wybitul of Hogan Lovells and Kevin DeLong of AccessData again.
Our agenda was the same at each location, localised by participants skilled both in the overall subject and in what needed to be done in their respective jurisdictions.
Having recruited Judge Peck for his knowledge of cross-border discovery (he and I have been doing panels together on this subject in various jurisdictions for years) we took advantage of his pre-eminence as a commentator on the use of predictive coding and other forms of technology assisted review in eDiscovery. So my two key topics of the year – cross-border discovery and predictive coding – came together at once.
There are interesting parallels here: as I have recounted often, my first US session on privacy and data protection, back in about 2008, was met with derision at the idea that anyone would stand between an American and his insatiable eDiscovery demands. I met much the same reaction, and at about the same time, when I first talked about data analytics as an aid to discovery in Germany. The world has moved on in both topics.
AccessData’s Lori Tyler brought to this tour the same organisational skills as AccessData brings to its eDiscovery project management. It is no small thing to move a team between cities, and to organise venues, speakers, meals, transport and hotels. In advance, the schedule appeared daunting; once done it seemed an extremely pleasurable way to have spent a week. If one of the perks of my work is the high quality of the panels they give me to moderate, the other is the interesting places I get taken to. To have all the admin of travel taken away from us was a bonus, and Lori Tyler is a genius of organisation.
In London at our venue was the offices of CMS Cameron McKenna. Jonathan Armstrong and I have trodden the same ground in parallel for many years without actually meeting and it was a particular pleasure to have him on the London panel.
In Amsterdam, much to Judge Peck’s pleasure, our venue was the building in which the Dutch West India Company made the decision to buy Manhattan for 60 Guilders in 1626. A statue of Peter Stuyvesant stands in the courtyard. What chance brings a long-time resident of Manhattan and a judge of the Southern District of New York to speak at this particular place?
In Frankfurt, our venue was the most fantastic car museum.
We walked around Frankfurt on our last night in Germany. The Union Jack hung beside the German and EU flags. When we awoke the next morning, the UK had voted to take us out of the EU. I wonder what flags were flying that day.