Part of my reasoning in deciding not to go last year to the Georgetown Advanced eDiscovery Institute was the knowledge that others would write comprehensively about what was said there – Georgetown brings out the likes of LTN’s Monica Bay who can be relied upon to produce accurate, comprehensive and readable reports of what was said. A lot of important ground was covered at Georgetown – predictive coding, “judicial activism”, proportionality, the preservation rules, and the definition of “relevance” all got an airing in ways which indicated that real change might be coming, not just in rules and procedure but in understanding. This was particularly true in respect of foreign discovery which was considered by a panel which included Judge Scheindlin and Jonathan Armstrong, a partner at the London office of Duane Morris and a well-known speaker and writer on cross-border discovery.
My sources as to what was said are Monica Bay’s article Judge Scheindlin Demystifies Foreign eDiscovery and a short podcast (No 80 on the list) made by Jonathan Armstrong and his partner Eric Sinrod as part of their weekly Tech10 podcast series.
In summary, and as introduction to the rest of this article, the points which emerged were:
The rest of the world does not get and does not like the US concept of broad discovery. It tramples not only on settled principles which define the scope of discovery (which, in civil law jurisdictions, is usually none) but also on statutes about data protection and privacy; it also appears crass, disproportionate, and culturally unacceptable, particularly in countries where private information has in the not-too-distant past been used to identify, imprison and kill people because of their views, their religion, or their sexual preferences.
There are well-established principles, originally articulated in the Aerospatiale Opinion [Societe Nationale Industrielle Aérospatiale v. United States District Court for the Southern District of Iowa, 482 U.S. 522, 524 (1987)], which try to achieve a balance between the demands of US discovery and the restrictions of foreign jurisdictions. Too often, to foreign eyes at least, the balance falls too heavily on the US side, with mere lip-service paid to the laws of other countries.
Part of the problem is simple lack of knowledge on the part of the lawyers and judges; the result is that resistance to eDiscovery based on Aerospatiale principles is raised too late and inadequately, often appearing as a last-ditch excuse rather than as a legitimate reason why full discovery on the US model cannot be given. This cuts the other way as well, of course – non-US companies with US interests should be aware of the expectations of US courts and regulators in this regard.
This is a more nuanced problem than might appear, and it is not as simple as saying either that the US approach is wrong or that – as may appear to Americans – the bloody foreigners are simply being obstructive with their data protection laws and blocking statutes. If you choose to do business in the US – to have offices there, to be listed on the New York Stock Exchange, to engage in lucrative US trade and to seek the help of US courts – then you cannot simply say that you want to play by your own rules. On the other hand, these “rules” are laws and it ill-behoves a US court to encourage breaches of other countries’ rules. Judgements have to be made and risks must be assessed, both by those who engage in US business and by those who initiate proceedings with a foreign dimension. You cannot form a considered judgment nor sensibly assess risk without knowing what the basic facts, law, costs and other implications are.
We began to see some progress recently, notably as a result of the Sedona Conference International Principles on Discovery, Disclosure and Data Protection, published in December 2011, which urge respect for the laws of foreign jurisdictions and make practical suggestions for reconciling the conflicts. There are also some well-meaning and thoughtful people on the EU side, who understand the problems and try to work towards some kind of rapprochement. There is a long way to go on both sides.
The Sedona suggestions include taking local advice, using technology to identify personal or otherwise restricted information, and anticipating the delays and inevitable cost caused by the need for translation and other consequences of a non-US venue; on the procedural side, the Principles recommend prompt and informed approaches to opponents and to the court so that the potential problems are identified early and taken into account by the court, which may make orders restricting the scope of discovery, protecting the data itself and building the implications into the timetable.
Not all judges get it – Eric Sinrod gives an example in the podcast mentioned above of a judge who expected everyone to turn up in his courtroom the following day with all the documents – a man who had clearly missed the point about foreign data privacy, quite apart from not grasping the normal practical eDiscovery implications.
Judge Scheindlin does seem to have got it. As Monica Bay reports it:
Scheindlin urged the audience to be proactive with the court. “It’s your job to educate the judges,” she said. “We on the judiciary are blissfully unaware of these problems. Many judges have no experience with foreign law. Litigators, Scheindlin suggested, should focus on the parties, rather than non-parties. Judges, she said, can make demands on parties. And if different rules and jurisdictions are at play, “it’s your job to raise the issues” to the court. And “raise the issue quickly — at the Rule 16 conference,” said Scheindlin, referring to pre-trial meetings required by the Federal Rules of Civil Procedure. “It’s all about education and raising the issue early.”
We have come a long way since I first started talking about this in the US six years or so ago. Then, I did panels with Patrick Burke of Guidance Software or Nigel Murray of Huron Legal, often in the company of well-known US lawyers whose deep knowledge of the subject was the product of hard-won experience. At these sessions we would explain these problems to an audience who simply did not believe us when we said that foreign courts and parties did not welcome US discovery. There was an element of cultural imperialism here, frank disbelief that American rules did not apply elsewhere and that foreign jurisdictions were not mightily impressed by the order of an American court. I illustrate my talks with two photographs – the first showing US soldiers rushing down the ramps onto the beaches of France on D-Day and the second showing what that looked like from the cliffs on the other side. That is what your discovery demands look like to us, I say.
I don’t do outrage on the whole, but in this conflict between the US and the rest of the world, I often find myself spokesman for the rest of the world, and the result shows in articles like my Federal Judge makes a monkey of the cheese-eaters (this has more relevant material in it than its flippant-sounding title may suggest)
In addition to the general trend towards an understanding of the problem, two points have arisen in recent panels which I have moderated which are worth recounting here.
The first was at the Masters Conference in Washington in October where I moderated a double panel on cross-border discovery jointly with Amor Esteban of Shook, Hardy Bacon – an expert in this field and chairman of the committee which produced the Sedona International Principles. The other panel members were Richard Hood of Andrus Hood & Wagstaff, Steven Bennet of Jones Day, Monique Altheim of The Law Office of Monique Altheim, Thomas Fleming of Kirkland & Ellis and Nigel Murray of Huron Legal
Richard Hood is a plaintiffs’ lawyer and comes up against Amor Esteban quite often in proceedings where cross-border discovery is a component and where they are on opposite sides. What emerged from the discussion between them on the panel was that, whatever else they may fight about in these cases, they work together where appropriate to mitigate the difficulties caused by foreign rules and to make the court aware of those difficulties at an early stage. This is in line with what Judge Scheindlin said at Georgetown.
A few weeks later, I moderated a cross-border panel in Munich where one of the panellists was Dr Alexander Dix, Berlin Commissioner for Data Protection and Freedom of Information, and therefore someone who is regularly confronted by these problems from the other end. Among the many useful and interesting things which he suggested, was the possibility of getting from the local Information Commissioner a certificate as to the law obtaining in that jurisdiction. One of the difficulties faced in American courts performing the balancing exercise required by Aerospatiale is the view taken by some US courts that foreign laws can be ignored because there is no history of enforcement. A certificate such as Dr Dix mentions would go some way at least towards confirming what the law is.
As Monica Bay says in her article, the Georgetown audience was a sophisticated and informed one, allowing the panel to talk at a rather higher level than one can in some places. It is clear that we are making some progress on this subject
The French have a saying tout comprendre c’est tout pardonner – to understand all is to forgive all. I do not think we are yet at the point where the French will pardon US excesses in their discovery requests nor that the US will begin to accept the very restrictive French approach to data exports. Nevertheless, showing willingness to understand them is a good start. The panel at Georgetown shows that we are getting somewhere in this direction.