Whose discovery rules would you rather break?

Damned if you do, damned if you don’t is the dilemma which faces many who are responsible for document production simultaneously in more than one jurisdiction. The subject was covered in some of the sessions at IQPC’s Information Retention and E-Disclosure Management conference in London last week, most comprehensively in an interesting hypothetical situation run by Tracey Stretton of Kroll OnTrack and Tahir Khan of Addleshaw Goddard involving a complex set of international transactions, transatlantic implications, litigation and regulation all in one go.

I will not attempt a summary – just to mention it is enough to remind you that those multi-jurisdictional elements require a multi-dimensional approach, and not only in multi-million Dollar claims.

It is an area in which US judges are seen as the villains, determined to assert their courts’ authority whatever the consequences in other jurisdictions – “the second-worst form of Amercian imperialism” as an American described it at LegalTech earlier this year. It is often presented as an unappealing choice between a spell in prison in the US and a similar spell in France, probably without the opportunity to compare the facilities before making your election.

It was interesting, therefore, to hear a US judge give his view – interesting, but not perhaps very comforting. US Magistrate Judge the Honorable Andrew Peck was a welcome guest on the judicial panel on the second day at IQPC which I have already described (see Guidance on benefits of e-Disclosure Project). He sat also on an earlier panel called Identifying and overcoming issues when planning and formulating an effective record management strategy, with Patrick Oot of Verizon and Christina Turton of Barclays, where the subject of conflicting jurisdictions and laws came up.

EU privacy law, Judge Peck said, is an issue which is increasingly raised in front of him in a context where one party seeks disclosure of documents which the other party says it cannot give, because to do so would breach one or more EU regulations and, say, French privacy law. Peck was pretty uncompromising on the subject: “I am going to control my side of the pond as much as I can”, he said, which I took to mean that the cheese-eating surrender monkeys could stuff their regulations up their blue and white striped blousons so far as his court was concerned.

Judge Peck used a phrase in this context which I have not heard before – a “rocket docket”. I guessed, correctly (and Wikipedia confirms), that this is a court or other tribunal that has an accelerated timetable and that strictly adheres to deadlines, resulting in speedy disposition of cases and controversies that come before it. Peck has such a reputation, and used the phrase in this context to imply that he was not going to have his timetable held up by lengthy applications to the International Court at the Hague.

He preferred, he said, that lawyers find creative ways to deal with privacy issues and conveyed the impression that every problem was capable of speedy resoluton if the parties were given sufficient incentive to focus on the implications. It sounds as if he gives them every incentive.

It is true to say that the Bastille is not full of company secretaries and in-house lawyers languishing on straw mattresses in oubliettes – or, at least, I suppose it is true, it being in the nature of an oubliette that no-one remembers that you are there. The point is that no-one wants a place in the Guinness Book of Records for this particular aspect of records management.

It gives a real meaning to the word dilemma, here used in its proper sense to mean a state of uncertainty or perplexity especially as requiring a choice between two equally unfavourable options. I certainly do not purport to give an answer, not least because there is no generalised right course. If the problem arises – and it does, all the time, for many multi-national companies – there is an urgent need to seek out some kind of “creative way” as Judge Peck says, preferably with some good advice to hand from someone who has been that way before.

Like everything else in this area, that advice is best sought in principle and pre-emptively, and not just in terror and reactively.

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