Vivian Reding: The overhaul of EU rules on Data Protection: making the single market work for business

December 5, 2012

Vivian Reding is Vice President of the European Commission and EU Justice Commissioner. Here is a link to the text of a speech given on 4 December 2012 in which she explains why she thinks we need a new data protection regulation.

It is unlikely that anyone will argue with the idea that a directive made in 1995 is inadequate for the challenges of 2011 now that the Internet, social networking, cloud computing and sheer volume have changed our concept of what data is, and have introduced new problems along with many benefits. We cannot argue either with the idea that any new regulation should be ideally be consistent across the EU and that it should be backed by sanctions consistently applied.

Consistency, however comes at a price, and that price is the acceptance that the EU Commission is entitled to impose a consistent regulation across diverse jurisdictions and cultures and that it has any idea how to make such a thing work. The Commission will say that this is precisely what the EU is for. Many of us will see that as a drawback, in both nationalistic and practical terms. The idea that anything emanating from the Commission will cut red tape – an express ambition behind the regulation and referred to in the speech – is frankly laughable. Read the rest of this entry »


Plenty to do in an ever busier eDiscovery market

April 22, 2010

It is very flattering when people write in to ask if I am all right because they have noted that the number of blog posts is down in a particular week, suggesting as it does that people do not merely read what I write, but look out for it.  It would, no doubt, be a very pleasant life if I could just sit in my office writing carefully-honed articles but, if that was all I did, I would soon run out of things to say. Furthermore, blog posts are not the only written output, and writing is not the only way of meeting my objective of spreading the word about e-Disclosure.

To allay the suspicions of those who may think that I have taken a week off, it is worth quickly summarising what has been going on. It is useful, periodically, to give some idea of the range of activities which promote the subject, because it shows how much activity there is in the market. Read the rest of this entry »


Peer-to-peer networking at the IQPC Corporate Counsel Exchange in Brussels

April 20, 2010

The night before I left for IQPC’s Corporate Counsel Exchange in Brussels, I gave a short talk at an event organised by 7Safe in London. I will write about that separately, but its theme was that we are seeing a greater rate of change in the UK e-Disclosure world than at any time hitherto, thanks to a combination of procedural initiatives and salutary cases. Change is very much in the air in other areas as well – when I went away, the Liberal Democrats were a joke with no hope of a role in government; by the time I came back, they were a joke with a serious prospect of a role in government. The expression “change is in the air” acquired additional resonance when another minority entity thought to be capable of zero impact managed to bring the entire world to a halt. As the current joke has it, it is cash we want from Iceland, not ash. My wife and I came within a hair’s breadth of falling victim to the latter. Mary Ann, sensibly, took it for granted that we would travel by Eurostar and, in her role as my travel department, and in that no-nonsense way which women have, was poised to make the booking. Wait, said I, in my male, have-we-considered-every-option? way, we should check out the flights. Fortunately, anything that BA had to offer was both more expensive and more inconvenient than the train, even before Iceland intervened.

I was busy down to the moment of leaving home, and had not begun to focus on the implications of the volcano. I assumed that the long queues at the St Pancras Eurostar terminal comprised people keen to get away before the Lib Dems took power (if you think that New Labour loves interfering in our lives, wait till you see what inherent contradictions lie in the two words which make up the name “Liberal Democrat”). Uniquely amongst British public transport ventures, Eurostar just works. Uniquely also, the St Pancras terminal combines aesthetic pleasure with practicality – c.f. the Brussels terminal which has been apparently been designed deliberately to be as ugly and inconvenient as possible, inside and out. Our choice of hotel was another example of the triumph of female instinct over the curious male need to weigh every option. It took Mary Ann about ten minutes to light on the Stanhope Hotel, and a further two hours, at my insistence, for us to examine every alternative and read all the reviews before booking – at the Stanhope.

Incidentally, I just loved the notice on the hotel website offering a “10% kickback on conferences”. I am sure that “discount” was the word they were after, but the subconscious message sent out by using “kickback” just yards from the heart of the EU’s Parliament and bureaucratic centre, was perfect. Read the rest of this entry »


IQPC Corporate Counsel Exchange in Brussels 18 – 20 April

April 12, 2010

I am off to Brussels at the weekend for IQPC’s Corporate Counsel Exchange. The format for this conference is rather different from the conventional series of panel discussions and platform speeches – there are plenty of these, but the primary purpose of the event, as its name implies, is for the exchange of ideas rather than merely their promulgation. The speeches and panels serve as the catalyst for business meetings and round-table discussions.

This format seems to be appreciated both by corporate counsel on the look-out for ideas and answers and for those who have software and service solutions to offer. Amongst the latter are Epiq Systems, Trilantic, Kroll OnTrack, Applied Discovery, Clearwell, LexisNexis and Wolters Kluwer, who should between them cover pretty well all the bases.

I am going to it for various reasons, none of which, for a change, is a speaking commitment. This session which interests me most is a case study led by Greg Wildisen and Mike Brown of Epiq Systems and by Vince Neicho of Allen & Overy. The title is Your company has just been raided and an investigation is under way. Have you an effective strategy to focus your resources on only the most relevant documents? Read the rest of this entry »


A short video could win you free tickets and accommodation at CEIC

February 17, 2010

The use of video turns up in these pages either where a supplier has used the medium to educate or to promote a product, or in a slightly embarrassed reference to my own reluctant appearances in front of the camera.

CEIC (Computer and Enterprise Investigations Conference) has come up with an interesting new use for the medium. They are offering free entry and accommodation for CEIC 2010 to the person who makes the best short video explaining why the maker wants to go to CEIC. The competition details are here.

CEIC was in Orlando last year. I was there in my capacity as a member of Guidance Software’s Strategic Advisory Board and thoroughly enjoyed it, despite torrential downpours. This year, the conference is at Summerlin in Nevada, so bad weather is unlikely. Read the rest of this entry »


UK Information Commissioner publishes plain English data protection guide

December 2, 2009

The UK Information Commissioner’s Office (ICO) has produced a guide in plain English which aims to make it easier for the non-expert to understand what is involved. That is all to the good, but this is not one of these situations where tout comprendre c’est tout pardonner.

I thought you wouldn’t mind a bit of French in the circumstances. Those trying to get data from France (or anywhere else in the EU, but France more than most) for use in US proceedings rarely forgive what they learn about the restrictive nature of EU data protection, even when they understand it – perhaps especially when they understand it. Indeed, the expression “Pardon my French”, used by the English to exculpate themselves after using some vile swear word, might well be helpful to those who have just discovered what those implications are – the language which results is often unsuitable for what used to be called “mixed company”. Read the rest of this entry »


Parallel and cross-border developments in handling electronically stored information

November 24, 2009

The second session at the Thomson Reuters Fifth Annual e-Disclosure Forum in London on 13 November was called Parallel and cross-border developments in handling electronically stored information. I was the moderator, although if Air Miles were the qualification for talking about international subjects, Browning Marean of DLA outstrips even me by a wide margin.

The panel comprised Senior Master Whitaker, Mark Surguy of Pinsent Masons in Birmingham, and Josh Ellis, Chief Information Officer at the Serious Fraud Office. I suspect that Master Whitaker has a wider range of knowledge on international case management matters than any other judge in the world; I opened by saying that, in the last six weeks, I have been in Brussels, Washington, Singapore, and in front of the UK Civil Procedure Rule Committee and the only other person present on all these occasions was Master Whitaker. In addition he is, as Senior Master, the channel through which requests under the Hague Convention are made. Mark Surguy was the only practicing commercial lawyer from the UK at LegalTech in New York this year. Josh Ellis, quite apart from his present role at the SFO, was responsible for international collections at PricewaterhouseCoopers for years and was thus able to bring a practical and hands on dimension to the discussion. Read the rest of this entry »


Posse List post profiles Project

October 7, 2009

I find myself in the unusual position of being the subject of a blog post rather than the writer. I was interviewed in Brussels last week by Gregory Bufithis of the Posse List which describes itself accurately as “your source for news, commentary and trends in the contract legal market”.

The venue was IQPC’s Brussels eDisclosure Conference, and the resulting post IQPCs Brussels focus: ChrisDale and the e-Disclosure Information Project serves as a better history of the e-Disclosure Information Project than I have written for myself. That matters only because it illustrates how far the electronic discovery world has moved in two years and, in particular, how views and information are being shared around the world. The problems are the same, and no longer merely in jurisdictions with a history of common law discovery. The solutions, and in particular the technology solutions, developed for civil litigation purposes, are readily applied to regulatory investigations and to internal purposes such as fraud investigation. Read the rest of this entry »


Information retention at e-Disclosure conference in Brussels

October 6, 2009

I demonstrated my own commitment to information retention by mislaying my notes of the sessions at IQPC’s Information Retention and E-Disclosure Management Europe Conference in Brussels last week. As with all the best document retention policies, this means that I do not have to wade through masses of information and can focus instead only on that which is important – “important” in this context meaning what I can remember. It is reasonable to assume, perhaps, that the bits I remember are those which mattered most.

Patrick Burke and Judge Peck

Patrick Burke and Judge Peck

We kicked off with a judicial panel moderated by Patrick Burke, Senior Director and Assistant General Counsel at Guidance Software. Patrick is one of the relatively few in the US who “gets” the idea that, however sophisticated the US legal system may be in many respects, those who do business in a multinational context must take notice of jurisdictional differences. Rather too many assume that things are much the same over here if you shout and wave your arms about. Read the rest of this entry »


Clearing the decks before going to Brussels

September 29, 2009

I do not pretend that this job is hard work in the way that trying to reach a sales target or managing a large project is hard work. It is far too enjoyable for that. It would, however, be good if all these interesting things could be spread out more evenly across the year.

Did I really agree to deliver 10,000 words for a book chapter on digital evidence by 1 October? Did that have to coincide with finishing off two white papers? Why do all the conferences end up bunched together (three conferences in three continents in three weeks starting this week in Brussels)? Are the Twitter eDiscovery lists always so full of interesting stories to follow up, or have I joined in at a particularly interesting point?  I could write ten stories a day entirely from the leads on there alone – but for the book, white papers and the conferences, that is. Read the rest of this entry »


New French Data Protection Opinion on US discovery procedures

September 23, 2009

I bet that headline made your heart skip a beat with excitement, as mine did when I saw that the Proskauer Rose LLP Privacy Law blog has a new entry headed French Data Protection Authority releases new opinion on compliance with US discovery procedures. To find “new”, “data protection”, and “French” in the same country would be quite something, never mind in the same heading.

Disappointingly, there is little new in the Opinion nor (despite my initial excitement) did I really expect there to be. Proskauer Rose supplies a helpful summary and, even more usefully, a link to a translation of the Opinion

If we cannot have something new, at least it is good to have a reasonably clear statement of what the existing position is. Since neither France nor any other EU country is likely to relax its requirements (on the contrary, the general drift is in the other direction) it is as well that US courts and lawyers have the clearest possible statement of what the restrictions are and what can be done within them to meet, as far as possible, the requirements of a US court or authority. Leaving aside the detailed definitions and regulations, which you can read for yourself, the main message is that quite a lot can be achieved by, for example, anonymising data and some serious filtering. Read the rest of this entry »


The information war – news from the front updated

July 9, 2009

My post Cooperative hands across the sea referred to an article by Jason Baron on Ralph Losey’s e-Discovery Team blog.  Jason’s article attracted some comments, two of which are worth hiving off for comment in their own right. One concerns the “information war” and is covered here. The other is about lawyer education which I will come back to.

Dr Jochen Lardner urges the importance of having the skills to conduct searches in any area of life in an information economy. He refers to “authority/credibility, censorship, technical failure, cybercrime/disinformation/information warfare”. Regular readers will know of my strongly-held view that all of these things, with the possible exception of cybercrime, are areas where UK citizens must do battle daily with their own government, both defensively (it will record everything about you and then lose the data) and offensively (MP’s expenses, ministerial cover-ups).

It now seems likely that the Labour Government will die of weakness and internal corruption before we get to the hanging-from-lamp-posts stage of civil disturbance which seemed a real possibility earlier this year. Nevertheless, we must remain alert to the potential for government misuse (whether by carelessness, incompetence or design) of the mass of private information which is collected about us, and be able to fight fire with fire – the “disinformation/information warfare” to which Dr Lardner refers is a civil war as well as one against foreign powers. Read the rest of this entry »


Sedona Conference dialogue on cross-border discovery in Barcelona

June 25, 2009

As I have noted elsewhere, I had my own cross-border problems in getting to the Sedona Conference International Programme on Cross-Border eDiscovery, eDisclosure and Data Privacy Conflicts in Barcelona on 10-11 June. I was chairing an edisclosure conference in London the previous day and due in Sydney at the week-end and, in consequence, arrived late in Barcelona and left as soon as the main business ended.

I am spared my usual faithful accounts of the sessions by Sedona’s sensible rule that “what happens at Sedona stays at Sedona”. My mission generally is to get as wide an audience as possible for what is said at conferences, but I am more than happy to submit to the restriction in this context, partly because there is more than enough else to write up and partly because the density of the dialogue (and Sedona is expressly committed to dialogue rather than debate) is such that you would need a book to do justice to its proceedings.

It seems sensible instead to juxtapose some stereotypes against the reality in an attempt to show those new to the subject what the broad picture is. This matters because cross-border issues inevitably involve cross-cultural matters as well as conflicts of laws. The best and most topical summary of the issues is Working Document 1/2009 on pre-trial discovery for cross border civil litigation prepared by a Working Party set up under Article 29 of EU Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Its introduction recites the problem thus: Read the rest of this entry »


How safe is safe harbor?

February 10, 2009

I spoke on safe harbor on a panel at LegalTech sponsored and led by LDSI. Does it give as much protection as its proponents aver? Why is Europe so concerned about data privacy anyway?

It is a beguiling expression, safe harbor. You picture small boats rocking gently in the sunlight behind a stout sea wall whilst the storms rage beyond. Your precious cargo of data shipped from Spain or Italy is protected from the threatening clouds marked “SEC” and “IRS” and can be processed and reviewed in peace by your trusty crew. European data controllers can sleep peacefully at night confident that they are protected from marauding information commissioners and angry data subjects.

Safe harbor

Such is the appeal of the expression “safe harbor” that America started using it simultaneously for more than one completely different concept. One is the registration mechanism thrashed out between the European Commission and the US Department of Commerce in 2000 to mitigate the commercial impact for US companies of the EU Directive 95/46/EU of 1995 on the Processing of Personal Data. Another protects ISPs from copyright infringements by their users. The expression also occurs in Evidence Rule 510 to do with waiver of privilege. This article relates to data privacy. Read the rest of this entry »


Epiq opens in Brussels

January 7, 2009

Epiq Systems, Inc. have opened an office in Brussels to provide support for clients involved in pan-European and global litigation and regulatory investigations. Epiq is best known for its DocuMatrix review platform and for corporate insolvency, as well as for litigation work.

An Epiq team will be permanently based in Brussels which, as International Managing Director Greg Wildisen put it, is “in the heart of the European Union and alongside policy-making institutions”. Read the rest of this entry »


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