The civil law jurisdictions of mainland Europe have no discovery tradition as it is understood in common law countries like the US and UK. The IQPC Information Retention and eDiscovery Exchange in Munich was an opportunity for corporate counsel to find out what matters, why it matters and what to do about it, as well as to meet service providers who can help them. The “adequate procedures” defence given by the UK Bribery Act sets a target which acts as a spur to the initiation of pre-emptive measures regarding information management.
Any discussion about electronic discovery in common law jurisdictions comes freighted with history, not all of it helpful. Common law discovery rules require the exchange of documentary evidence between parties to litigation. Our definitions vary, and our rules, case law and practice can produce different results; there may be more (the US) or less (the UK) skirmishing in advance as to the proper scope of discovery, and different jurisdictions have different ways of measuring compliance and of punishing defaults. The end result, however, is that a lot of documents are handed over. I may have strong views on how we should go about this and about how we can reduce the volumes in play without any risk to justice, but I will fight to defend the principles of common law discovery.
Civil jurisdictions, such as those in Europe, have none of this. I simplify for the sake of brevity, but the general approach in these jurisdictions is that the court decides what documents it needs to reach a conclusion. Those who seek other documents must specify them with a degree of particularity which effectively requires that they can say exactly what they are looking for.
The privacy and data protection laws which limit what you may hand over are less onerous when viewed in the context of this civil framework, for the fairly obvious reason that the discoverable volumes are smaller. It becomes easier to understand the EU Commission’s attitude to the impact of privacy restrictions once you appreciate how little is exchanged. This is the world for which the data protection and privacy laws were invented – Europe not only has incentives for minimising document exchange derived from its political history, but has no tradition anyway of handing over documents in civil proceedings.
US lawyers tend to see an obstructive Europe standing in the way of legitimate demands for information. It looks rather different from the perspective of a French or German company which, with no discovery tradition, finds itself under siege. Its links with US companies, whether as a parent, a subsidiary, sister company, or as just as a business or trading partner, bring demands for US-style discovery which appears to recognise no jurisdictional limits. A range of US authorities claim both regulatory and criminal rights over their documents. The EU has its own regulatory authorities and an unquenchable zeal for interference. There is proactive assertion of the rights of the individual against the state and against corporations. On top of all these external pressures comes the recognition that we cannot just go on collecting information at the rate at which we can now create it – a business incentive added to the external factors.
All this gives a different flavour to e-discovery conferences in mainland Europe, even where the organiser (in this case IQPC) has a well-established London conference with almost the same title, and where many of the speakers are the same as those I meet everywhere else. The Munich event was, in IQPC parlance, an “Exchange” rather than a “Summit”, which means that the corporate counsel (who are the main audience) have pre-arranged meetings with suppliers whose offerings have been pre-matched to their expressed needs. The impression I got from speaking to both providers and delegates was that there was a high compatibility rate. The Exchange format also provides conventional speaker and panel sessions plus the opportunity to mingle and talk in the gaps and over meals. If my primary reason for going to these events is to speak at them, I am equally interested in meeting informally with delegates and suppliers, with as much emphasis on listening as talking. Read the rest of this entry »