The US has not hitherto taken very much notice of eDiscovery / eDisclosure developments outside the US, but that is beginning to change. That is partly because of the predictive coding decisions – the Irish Bank Resolution case from Ireland, and the Pyrrho and BCA Trading judgments from England and Wales. There is a growing US interest also in competence when it comes to discovery, and in the incurring of unnecessary costs through failure to cooperate or in the manner of giving discovery.
It is the latter aspect which caught the eye of Patrick Burke of Seyfarth Shaw in an article on his firm’s new and rather good Carpe Datum Law blog. The article is called UK Ministry of Defence Loses Landmark Afghan Veteran Case Due To Sloppy E-Disclosure. He anticipates US interest in Eaglesham’s complaint that:
“[T]he documents were provided in random order, with no explanation as to where they have come from, no explanation of the context in which they were prepared, and no explanation of the acronyms/abbreviations used in them…There has been no attempt by the Defendant to give even a broad range of dates or details of where the undated documents were found or which department they came from.”
I have known Patrick Burke for many years, and we have done many panels together, mainly in the US on data protection and privacy. He is one of the few US eDiscovery lawyers who takes the trouble to understand what happens in other jurisdictions, and that makes him a good commentator, particularly now that the US is having to take notice of privacy and data protection restraints on discovery in the EU, China and almost everywhere else where US businesses want to trade..
Patrick Burke is kind enough to quote my own article on the Eaglesham case. Rightly, he focuses on my unwillingness to be over-critical of the MOD and other government departments which face problems – of legacy databases and austerity – worse than those faced by many commercial organisations.
The breadth of coverage in Seyfarth Shaw’s blog (of which Patrick Burke is the editor) is shown by another recent article written by Patrick called China Finalizes New Cyber Security Law. This extends from the law and into the business implications for US corporations wanting to do business, and do it prudently, in the complex markets of the Asia Pacific region as well as the EU.
I recently interviewed Patrick Burke about Seyfarth Shaw’s work on behalf of US corporations who, Patrick says, are increasingly engaging in pre-emptive projects to anticipate the problems of eDiscovery, not least those posed by the pending General Data Protection Regulation and by the Privacy Shield. My interview with Patrick will be published shortly.