My main reason for attending the Global Technology Law Conference 2015 in Singapore at the end of June was to moderate the closing judicial panel. As the conference title implies, its scope was much wider than pure eDiscovery and my panel was, in fact, the only one whose primary focus was on that narrow topic. That is as it should be – eDiscovery is servant to disputes, compliance and regulation, and those things are themselves ancillary to a wider commercial and financial world in which money and data are the central focus.
The conference was organised by the excellent Singapore Academy of Law. Its programme can be found here. It was the second such event – the first, in 2011, was more focused on disputes and attracted judges from many different jurisdictions, including our own Lord Justice Jackson and the then Senior Master Whitaker. Singapore is very good at finding out what happens elsewhere and adding the best of it to its own inventiveness.
Singapore keeps turning up in discussions about the future of London as a major litigation centre, along with the DIFC in Dubai. The new Singapore International Commercial Court has attracted talented English judges; it understands, as our wretchedly useless Ministry of Justice does not, that back office systems supported by technology, together with procedural efficiency, are factors which attract major international commercial parties who can, to some extent, choose their venue for resolving disputes. This is not the place to analyse this, but it helps explain why Singapore is increasingly attractive to those whose business is dispute resolution, whether they be London barristers or eDiscovery providers.
The conference chairman was the Honourable Justice Lee Seiu Kin of the Supreme Court of Singapore. He emphasised Singapore’s position as a thought leader on digitised funds and data and on the regulatory challenges which they bring. The law, he said, must evolve to cope with the negative elements of online threats and cybercrime, and to manage the protection of personal data, while not standing in the way of new initiatives with the potential for benefit to both the state and its businesses and individuals. This is a rather more all-embracing vision than one gets from judges in most jurisdictions.
The keynote address was given by Mr Ravi Menon, managing director of the Monetary Authority of Singapore. His was an upbeat message covering how “technology is changing the way we live, work, and play”. He talked about the integration of finance and technology as non-financial players mirror the services traditionally offered by financial institutions with their own systems for managing payments, lending and investment. This in turn is forcing change on established financial institutions. The role of the regulator in that context is to encourage new ideas with potential to improve life whilst maintaining a regulatory oversight necessary to protect customers and others.
Singapore is ambitious to be a smart nation, and a smart nation needs a smart financial centre. The role of the monetary authority of Singapore is, Mr Menon said, to work with industry to devise “a regulatory approach conducive to innovation while fostering safety and security” and to help develop potentially useful initiatives. As part of this, MAS is committing $225 million over the next five years under the Financial Sector Technology and Innovation (“FSTI”) scheme.
Professor Ian Walden, Head, Institute of Computer and Communications Law, Queen Mary University of London, gave a thought-provoking talk on the Internet of Things. The passage which sticks in the mind was his examination of the Nest thermostat, starting with all those bits of paper you discard on opening the box. The device itself consists of hardware and software, including some open source software, each with different owners. You have a contract with the company which sold you the unit and a different one with the installer; that is just the start. Your data – both the personal information to do with registration and the record of your settings and use, live with Nest, which is owned by Google. A multitude of contractual, intellectual property and data privacy implications arise, some of which are inconsistent with others.
It gets worse. Your heating control device is accessed via your smartphone or tablet or, perhaps, by a device in your car; each of these has its own network of rights and obligations, to say nothing of risks. No one person controls this interrelated technology and most of us just accept its benefits without considering its implications, not least its eDiscovery implications.
A panel called Intellectual property issues in the Internet of Things and Big Data brought us, among other speakers, Corrine Tan, Head of Legal, Google South-East Asia – Emerging Markets. She explained how YouTube manages the intellectual property rights which arise with the vast amount of data put daily onto YouTube. Every song and every movie sits in a vast database, and copyright owners can define what they want to happen in relation to it – not just geographical restrictions but what happens when a copy, perhaps of an extract, is uploaded by someone else. If you have ever wondered why the video you watched yesterday is not available today, it is because of this massive Big Data exercise going on behind the scenes.
My own panel brought together Justice Lee Seiu Kin of Singapore, US Magistrate Judge Andrew Peck of Southern District of New York, and Judge David Harvey of the New Zealand District Court at Auckland. The formal title of the session was Judicial panel on data protection and data analytics in discovery, but we took a broad approach to the topics falling loosely under that heading.
Justice Lee opened with a survey of the implications raised by multiple sources of data going beyond the by-now conventional email and Word files. Among other things, these raised the standard of expertise required of judges as well as the lawyers. As sources grow in both volume and variety, it becomes the more important for judges to exercise control over the scope of discovery, ensuring that the work is proportionate to the anticipated benefits.
Judge Harvey talked about the discovery implications of the Internet of Things – he has written a paper about that here, which is better than me summarising what he said; it is enough to suggest that eDiscovery lawyers need to understand at least the scale of the problems which can arise, and not just in big cases run by specialist firms. Judge Harvey also gave us a lightning review of comparative civil procedures in Asia-Pacific jurisdictions, just as he had for a panel which I moderated in London a few weeks earlier. You can find that here.
Judge Peck is eloquent on many subjects, most notably on the use of technology-assisted review, its judicial acceptance in the US, and the need for cooperation, protocols, and active management by the court as well as a new level of lawyer and judicial competence. He reduced this by now big topic to a short clear summary which left the audience in no doubt as to which way the wind is blowing.
We ended with a quick survey of cross-border implications which affect regulatory and criminal proceedings as well as civil ones which raise (and magnify) all the other issues about proportionality, incompetence and data protection.
My aim with high-quality panels members like this is to stimulate discussion rather than a series of lectures, and that is what we got. There will in due course be a full set of educational materials derived from this conference and I will alert you to it when it is published.
It was good to be back in Singapore after too long a gap. When I first went there, the Marina Bay Sands Hotel was three tall stumps, then lacking the boat-shaped platform which now sits on top of it. This time I stayed there, with views over the mass of shipping which shows that Singapore still thrives on older and more conventional forms of trade as well as the expanding world of financial services and technology.
There are a few photographs largely taken from my room here.