Sydney feels familiar from the moment you step off the plane. It is not just its culture, language and architecture which makes you feel at home – its law, its information management issues, the remedies available to judges and the suppliers are the same or similar
Several decades ago, I lived and taught in Kenya on what was then not called a “gap year”. The gap was not optional in those days for those intending to go to Oxford or Cambridge. I had until September to occupy, and arranged to spend the interval at a remote up-country school near Nyeri.
There was a boy amongst us who could see English parallels everywhere – you would be standing on a mud road looking up a valley of tea plantations at the mist hanging over the snowy peak of Mount Kenya and he would say “Just like the Lake District”. I have half a recollection that he compared a part of Nairobi to his native Croydon. This obsession with the similarities became slightly annoying for one whose pleasure derived from the geographical and cultural differences. In fact, although Kenya had become independent only ten years previously, pretty well every outward trace of colonial rule had been extirpated. The first signs of the new colonialism of the multinational existed in the form of a new Hilton Hotel.
I thought of this as I came in to Sydney over Botany Bay, whose sewage farm, oil refinery and container terminal jarred somewhat against my mental picture of Captain Cook picking daffodils beside gleaming sands. The first sign you see, over the starboard wing before your wheels touch the ground, are the yellow arches of McDonalds. One’s expectations of finding anything very different from Oxford or Washington diminish accordingly.
It is easy, of course, for a visitor to be seduced by the surface layer of a foreign country. I paid a modest fare to be carried quickly by train to the centre of Sydney – how very different from home, where big business conspires with rentable politicians to provide poor service at high prices in essentials like public transport. If Australia has similar problems, they are not rammed down your throat from the moment you leave the airport, as is the case in Britain. The town planners, on the other hand, seem to be cast from the same mould as the aesthetically-blind pen-pushers who perform the same function here – the attractive and vibrant Darling Harbour is scarred by the hideous iMax building and multiple elevated highways at its south end, and some vulgar oaf has allowed shiny new escalators to foul the otherwise beautifully-preserved multi-tier shopping arcade in the Queen Victoria Building.
This is not just local colour to make a travelogue out of my visit, but part of the context to its purpose. I was in Sydney to speak – and listen – at Ark Group’s electronic discovery conference Preparing your organisation for eDiscovery. A glance at its programme will show you that the subject-headings are much as the same those we have at similar conferences – indeed, I spoke at an Ark Group conference in London a few days earlier and the programmes were pretty well interchangeable.
Maureen Duffy of Freehills, a large law firm in the forefront of practical, hands-on use of technology to manage litigation spoke about its use on their clients’ behalf. Bethwyn Berry of Cadbury Schweppes described what steps the company had been taking to ensure consistent implementation of and compliance with a document management policy as part of a strategy whose aims included eDiscovery. Geoffrey Lambert of KordaMentha talked about responding adequately to discovery requests or other forensic investigations in terms which strongly suggested that you would rather have him on your side than against you. Allison Stanfield of e.law gave the perspective of a supplier of general litigation services. The well-known names of the international consulting and software world – Autonomy, KPMG, and Kroll – gave presentations familiar in style, but no less useful for that.
Browning Marean of DLA Piper LLP US and I were billed under the heading “Learn from internationally recognised eDiscovery authorities” as was Seamus Byrne of eDiscovery Tools who was not, alas, able to attend. Browning’s message is universal rather than merely international – I have heard him speak in London, New York and, a few weeks ago, at ILTA in Dallas, and envy the easy way in which he delivers hard messages in a lightly humourous manner. In a couple of weeks’ time he is coming with me to Birmingham to show Judge Brown how he uses LexisNexis CaseMap to get on top of the facts and issues in his cases – it was Browning’s deft use of CaseMap, sitting at my desk in Oxford a while ago, which got me hooked on it as an information analysis tool.
My own talk was about the responsibility for discovery of lawyers, judges and clients, using the UK disclosure statement and Commercial Court Recommendations plus US cases such as Qualcomm, O’Keefe and Victor Stanley as examples. I began by making it clear that we in the UK did not approach Australia in any sense de haut en bas – the work in hand on the new Australian Federal Practice Note on electronic discovery, now in draft, was being watched with interest by those of us keen to advance the procedural aspects of case management, and I frequently quote the passage from it about the duty of lawyers to understand the basics of technology or to engage the services of someone who does. We can learn from each other.
I ended by making it clear that a significant level of responsibility fell on the client to get its house in order in anticipation of litigation, regulation and investigation and, indeed, for reasons of simple efficiency. This was, as it turned out, a good segue into the Cadbury Schweppes session which followed.
I came away from Sydney determined to maximise the potential for pooling Australian and UK resources on this subject. I know Jo Sherman who, in addition to being CEO of e-Discovery Tools (where I also know Seamus Byrne and Renée Lee), has been the major force on the drafting of the Practice Note. Geoffrey Lambert of KordaMentha came to see me in Oxford a few days before I left for Sydney – another clear-thinking expert on this subject who gets his hands dirty with day-to-day eDiscovery work. Of my sponsors, Guidance Software, LexisNexis, Epiq Systems, Autonomy and Interwoven Discovery Mining have Australian interests. There are enough people who know each other and think along the same lines to make real progress here, not least at the level of making sure we do not reinvent the wheel – which is the same wheel in nearly every common law jurisdiction.
This was made clear, if I did not know it already, at the Masters Conference in Washington, which was my next stop. I have written something about that already – more in due course.