Ben Rusch is a solicitor and Vice President of Document Review Services at Consilio in London. He took part in a panel discussion on privacy, data protection and cross-border discovery which I moderated at ILTA 2017 in Las Vegas, where his subject was the practical problems of collecting data in the EU. This aspect gets relatively little coverage compared with discussion about the legal difficulties, and I wanted to hear more from him as someone who deals with these issues daily.
Two issues come up in this interview. One is to do with practical things like getting hold of equipment and premises. The other is about the added implications which EU privacy and data protection rules and expectations put in the way of those who are used to how things work in the US.
Ben Rusch says that the practicalities of procuring equipment are often overlooked. In most US cities it is easy enough to get your hands on rented computers and related equipment at short notice. That is far from the case in many EU countries, even before you get to other questions like office space and the quality of infrastructure like broadband
This there is also more form-filling and box-ticking in many EU countries and this has knock-on effects on an exercise which the clients would like to start immediately.
EU privacy and data protection requirements add another layer of formality as companies must seek the consent of custodians and (in some countries) the cooperation of the Workers Council.
The real problem, often, comes down to how corporate data has been kept. Many companies do not observe distinctions between personal and corporate data and, while some private information is susceptible to automated redaction (Social Security numbers and email addresses, for example) others, such as religious beliefs, are not.
While technology can cover much of the ground, a high proportion of it has to be dealt with by in-country review using teams of reviewers.
This, when added to the practical problems referred to by Ben Rusch, can slow the process down. The critical thing is to manage the expectations of clients, lawyers, opponents and courts so that everyone involved is aware of the potential sources of delay, and then to bring a combination of technology and human skills to the problem as soon as possible.