CEIC 2010 is winding down here in Las Vegas. Whatever measure you take – the quality of the sessions, the opportunity to catch up with people and meet new ones, the sheer numbers of people attending (1,300 or so), the venue, or the glimpses through the bus windows of this not-quite-real city on the way back from dinner last night – it has been a great success.
For those unfamiliar with it, CEIC stands for Computer and Enterprise Investigations Conference and is run by Guidance Software, whose data collection and processing applications are used all over the world for everything from one-off defensible collections to enterprise-wide network collection applications and the consultancy which goes with it. My particular interest, electronic discovery, is only a part of what the applications are used for – internal investigations, HR incidents, government and military needs, and rapid reaction to external or internal demands for information, are all covered. It is deeply technical stuff, and its users need technical training to match. CEIC allows all those involved – from hands-on lab types to decision-makers – to gather once a year, to top up their skills, to meet others with the same or adjoining skills, and to find out what drives the other players. The technical people increasingly need to know about the context in which they collect data, and those who devise strategy must have some idea of technical difficulties and solutions.
I come primarily because I am a member of Guidance’s Strategic Advisory Board, which gathers twice a year to allow interchange of ideas between the product and marketing people and a range of outsiders. The expression “what happens in Vegas stays in Vegas” applies as much to the deliberations of the SAB as to other activities which (so I understand) can happen here, so you will get no account from me of what was discussed. It was good lively stuff – ideas come out of the interplay between the participants greater than the sum of the contributions of each. I have served my time as a software developer, and I know the value of user input.
The other reason why I come is that an eDiscovery layer has been added over the years to the original purely technical purpose of CEIC. In addition to the session led by Browning Marean of DLA Piper which I have already mentioned, I went to two others.
The first was called Judicial Perspectives on Electronic Discovery, a panel led by Patrick Burke of Guidance Software comprising Honorable Andrew Peck, US Magistrate Judge, Southern District of New York, Senior Master Steven Whitaker, Senior Master of the Queen’s Bench Division, Royal Courts of Justice, United Kingdom, and Judge Donald Shelton, Chief Judge, Washtenaw County Trial Court.
The second was called International eDiscovery: Data Protection, Privacy & Cross-Border Issues, again led by Patrick Burke. The speakers were Dominic Jaar of Ledjit Consulting Inc., James Daley of Daley & Fey, LLP, and George Rudoy of Shearman & Sterling, LLP
There was a lot of meat in both these sessions, which will have to wait, perhaps for my ten-hour flight home tonight or until I can dictate them. Key observations include:
Judge Peck: 80% of sanctions decisions involve failure to preserve, most from incompetence, lying to the court or failing to co-operate.
Judge Shelton: 97% of all litigation takes place in state courts, and each state has a different approach. The state courts are less likely to apply severe sanctions than federal judges – there is a tradition of using sanctions as a last resort.
Master Whitaker: Sanctions are as good as closing the door after the horse has bolted; we need judicial management before, more than punishment after, the event.
Jim Daley: The Sedona Conference WG6 is trying to find common ground between the conflicting demands of US discovery requirements and EU data protection and privacy restrictions. There is room for optimism, but it will be a matter of risk management for some time to come.
George Rudoy: It is as important to understand cultural differences when collecting documents abroad as it is to know the rules and practice.
It may be tempting to think that all this applies only in very big litigation in courts and jurisdictions far removed from your everyday life. There is a squeeze coming, however: the range of cases to which this is all relevant increases every day; the scope for error or incompetence, and the penalties for it, come closer – one of the recent UK cases involved undisclosed documents lying in clearly-marked mail and documents folders, so deep-level forensics are not a necessary component of bad endings; there may be major issues of law, such as the scope of the duty of preservation or US-EU conflicts, but the most expensive and embarrassing mistakes derive from pure ignorance of basic rules or relatively simple aspects of technology.
Ignore it at your peril – or come to conferences like this, where top-drawer experts deliver easily-assimilated information on everything from court rules to how to reconstruct web pages or bring dead hard drives to life. You may not need to know how to do any of this this, but it sure pays to know what can be done and what the issues are, whichever side of the technology-legal divide you work in.
There is in fact only one conference like this, and you have missed it for this year. The next CEIC is in Orlando this time next year. I recommend it.
There are two things about the Red Rock in Las Vegas which I commend as models for other hotels. One is free Internet access for basic e-mail and web browsing. I have paid for two days of fast web access because I had a lot of downloading to do on one day and a webinar to give on another. The basic access has been fine for the rest. It would be good to start an international boycott of hotels which do not offer this or, at least, give a plug to those which do. The other much-appreciated benefit is the ability to pay to extend the check-out time in hourly increments – it has given me a congenial office to work in instead of having to camp in corners with a fading battery. Other hotels please follow.