One of the subjects which keeps me busy at the moment is cross-border electronic discovery. When I first started talking about it in the US about seven years ago, I was met with disbelief at the idea that people in non-US jurisdictions would decline to obey a discovery order from a US court. The world has moved on since then, and there is a better understanding in the US about the scope and effect of the data protection and privacy laws of the EU and, increasingly, in other jurisdictions.
We are not usually talking of a blanket ban on the movement of all data. The problem, when viewed from a US perspective, is the restrictions on Personally Identifiable Information (PII). The solution lies at three levels: first, a level of understanding as to the implications of this; second, informed assistance from people who understand the implications on how to deal with them; and third (but not least) the ability to host data within the EU and to review it here.
The first step in dealing with PII is to find it before assessing its relevance to the US discovery demands. Only then can one start working sensibly towards explaining the problem to the US court or regulator. That should be done in-country or, in most cases, in another EU country.
It is no small thing to set up a data hosting centre and review facility, which is why there are relatively few of them. Minneapolis-based eDiscovery provider NightOwl Discovery has helped remedy this by opening a data operation centre and review facilities in Dublin.
I met up this week with Nightowl CEO Andrea Wallack and its President Thomas Palladino. Their primary focus is setting up the new centre is to extend the assistance which they can give to global corporate clients in managing cross-border litigation and its privacy implications. It can obviously be used for EU-derived work as well.
The Dublin operations centre will provide secure, high performance data processing, hosting and production capabilities featuring the review and analytics application Relativity. Review management services will include first and second tier relevance coding, issues coding, privilege detection, and privacy information redaction performed by Irish solicitors and managed by NightOwl’s expert review and analytics team. The NightOwl EU operations team will also offer collection and preservation services across the entire EU and direct support for Guidance EnCase® and Symantec Clearwell enterprise deployments.
Also yesterday, I spent time talking to Mr Justice Frank Clarke of the Irish Supreme Court who was one of the judges on my judicial panel at the IQPC Information Governance and eDiscovery Summit. He was interesting (as he always is) on constitutional matters as well as on the efficient management of electronic discovery. Irish law looks to that of England and Wales, from which it was separated by independence in 1923. It continues to look across the Irish Sea for much of its legal development but has, over the years, looked to the US for developments affecting the constitution, there being no direct constitutional parallels with the rest of the UK.
There are all sorts of more immediate reasons why Dublin is a good place to be for multinational corporations, as Google, Apple, LinkedIn and other high-tech US companies have found. It is not just the favourable tax regime and other directly economic benefits, but the presence of a well-educated workforce, an advanced and business-friendly legal system and other less tangible benefits (such as being in beautiful Dublin).
This is an interesting move on the part of NightOwl, and I look forward to hearing how it goes.