My wide-angle lens is being repaired, so I have no photograph of the panel which Nigel Murray of Huron Legal moderated at LegalTech. There were eleven of us at the table for two consecutive sessions with the title A GC’s Nightmare – a US EDiscovery Request into Europe. The first part outlined the problems raised by the EU’s attitude to data protection and privacy and its conflict with US ediscovery requirements; the second part looked at practical ways to deal with the issues which arise. More than 140 people came to one or both sessions.
The panelists were chosen to give a rounded view of the legal and the practical problems from both sides of the Atlantic. Craig Cannon from Bank of America and Carter White of Lummus Technology Inc. represented the ones with the nightmares, the sleepless representatives of major US corporations whose business inevitably takes them into areas – and not just Europe – where US eDiscovery requirements conflict with more restrictive ideas about the use of documents and data. Amor Esteban of Hardy Shook & Bacon and Browning Marean of DLA Piper US offered the view from the US lawyers based in the US, whilst Farrah Pepper, recently moved from Gibson, Dunn & Crutcher to a role as in-house discovery counsel at GE had both viewpoints to offer. Natascha Gerlach is an attorney at Clearly Gottlieb in Brussels and she and Vince Neicho of Allen & Overy in London had the hands-on view from the European end. US Magistrate Judge Frank Maas of SDNY and Senior Master Steven Whitaker from the High Court in London gave the viewpoint of judges who deal with either end of the relevant requests. My role was to talk on the theme “How others see us” and to cover information governance. Nigel Murray was his usual urbane self, the conductor of an international choir whose singers were not guaranteed to sing to any pre-conceived score (there wasn’t one), but whose contributions covered every aspect of the problem.
With 300 words down just to say who was there, it would be foolish of me to try and summarise what each panelist said. Quite apart from anything else, whilst we had each chosen or been given our defined topics, there was no published running order. This allowed Nigel to follow themes as they developed, but since none of us knew who was going to be called next, this scribe had no realistic chance of capturing the contributions as they emerged – try doing this when you are on a panel, and you end up missing your own cue, conscious, perhaps, that you have just been asked a question in front of 140 people but with no idea what it was.
What is clear is that the years which we, and others, have spent talking and writing about this subject are beginning to reach audiences who understand what the problem is. I last did one of Nigel Murray’s two-part cross-border panels at LegalTech two years ago, and came away then feeling that we might as well have been speaking in Greek about the Second Coming – the idea that other jurisdictions might stand in the way of a proper request of the US Court was almost literally incomprehensible to most of the audience. Those of us who speak on both sides of the Atlantic are familiar with the equal and opposite incomprehension of an EU audience when you tell them of the expectations of US courts and lawyers.
One of my points, indeed, was that many US requests are unacceptably broad even before one gets into questions of data protection or privacy. Master Whitaker put flesh on this assertion by describing some of the requests which reach him in his capacity as the proper authority in the UK for receiving Hague Convention evidence requests from US courts. Many of them, he said, merely annexed the request made in the US proceedings with no attempt made to refine the request in line with the much narrower scope of UK disclosure. It is no wonder that requests made in the civil jurisdictions of mainland EU, where there is no discovery tradition at all, seem to get lost in the system.
Here, indeed, is one of the many benefits of the International liaison between judges which has grown steadily over the last four or five years. Master Whitaker is sufficiently immersed in US practice to understand the procedural origin of these wide requests. He identified US Magistrate Judge Andrew Peck as one whose court makes requests in a form which stand a reasonable prospect of being approved, thanks in part to the many panels which they have shared.
I came away from this panel, perhaps for the first time, with the sense that we might be on the edge of a change in attitudes. That derives in part from what I have mentioned above – a growing understanding on each side of, at least, the other side’s starting point. Americans cannot simply kick down the doors of Europe and other jurisdictions in their quest for unlimited evidence but, equally, EU companies cannot claim to play by their own rules if they want the benefit of US trade and the protection of US courts.
It is not, of course, within the power of any party (or foreign court, come to that) to vary or qualify the effect of EU wide legislation, nor is there any sign of relaxation of those rules – on the contrary, the draft General Data Protection Regulation will make it harder, rather than easier, for those who seek EU-based data which may contain personally identifiable information. What we are beginning to see, however, is the realisation that the interests of US justice can be served by the use of advanced technology, by informed transparency before the court at an early stage, and by attempts to agree (or to persuade the court) that a narrower range of discovery will suffice which accepts the data protection limitations without depriving opponents and the court of sufficient information for justice to be done.
Two developments, one before and one after our panel, are pointers to a new direction. We had with us, in the person of Amor Esteban, the Editor in Chief of the new Sedona Conference International Principles on Discovery, Disclosure and Data Protection whose introduction includes this:
the International Principles envisions a three-stage approach for parties seeking to avoid or minimize the conflict that might otherwise arise: (1) a stipulation by the parties or an order from the U.S. court to extend special protections to data covered by data protection laws; (2) a scheduling order by the U.S. court that phases discovery to permit time to implement data protection processes and to determine whether the same or substantially similar information is available from non-protected sources; (3) implementation of a legitimization plan by the parties to maximize simultaneous compliance with the foreign data protection law and the U.S. discovery obligation.
Its six principles, set out at the beginning, include references to “due respect” for foreign laws, to limiting preservation or discovery to that which is “relevant and necessary”, and to the need to seek a “stipulation or court order… to protect protected data and minimise the conflict”.
Hot on its heels comes a recommendation of the American Bar Association whose effect and purpose can be judged by the headline to an article on Covington & Burling LLP’s Inside Privacy website – ABA urges US courts to respect foreign data protection laws. As you can see from the Covington summary, the ABA principles take much the same line as the Sedona ones (you also get a brief but helpful description of what the problem is, which is why I refer you to it).
We have a long way to go. It is by no means the effect, or the desired effect, of either the Sedona Conference or the ABA recommendations that US courts and litigants should simply roll over and accept inadequate discovery simply because a foreign jurisdiction is involved. The recognition that discovery may have to be limited is not the same as accepting that it must be “inadequate”. The second half of the Huron panel at LegalTech focused on practical ways of bridging that gap.
As with eDiscovery generally, a new set of skills will be required of both lawyers and judges. The cases which we have seen over the last few years have involved equal measures of contentiousness and inadequate preparation, with the parties apparently taken by surprise by the effect of the foreign laws and presenting inadequate arguments to the courts. As with so much else in eDiscovery, one never reads of the cases which proceed smoothly with parties cooperating with each other and with the court to produce a result which is acceptable to everyone. This happens more than one knows.
Things may be changing, at last, but we will need Huron’s cross-border panels for some time to come as the Sedona and ABA principles gain acceptance and people start working out how to do things in new ways. My guess is that there will be better discovery as a result, if that quality is measured by the ratio of time and expense to effect – effect in real terms to do with the evidence, that is.
I was approached the following day by someone from a household-name US corporation who said that this was the clearest and most practical session she had heard on cross-border eDiscovery. My thanks to Huron and to Nigel Murray for organising this enjoyable and informative event and for inviting me to take part in it.