This is the second in a short series summarising the events which I have attended so far in 2016. The first is here. The travelogue is just a peg for the real purpose of the series, which is to show the breadth of subjects now related to what was once a single topic, eDiscovery. The paragraphs about subjects are indented.
May. Ah, yes, May. A popular month for events – I sometimes wish organisers would agree to divide the year up and spread the events evenly across them.
It began with the Relativity 2016 Spring Roadshow in London which I wrote about here. I moderated two panels on the recurring themes of the year, one on data protection and the pending GDPR, and one on predictive coding. Another panel was concerned with another recurring theme of 2016, the similarities and differences between the US and UK – one word defined that difference, said Jonathan Maas: proportionality
Then came the largest annual conference in the UK, always known as “IQPC” although you this year rebranded as IICE – Information Management, Investigations, Compliance, eDiscovery. This event, as its lengthy title implies, covers a wide range of the topics related to or touched by electronic discovery, but pure eDiscovery, which used to occupy a least half the programme, was reduced to my single panel. That, once again, was about the use of predictive coding in civil procedure and pursued the increasingly interesting subject of comparisons between the US and the UK. For the US we had US Magistrate Judge David Waxse and Hal Marcus of Recommind (now OpenText); the UK representatives were Ed Spencer of Taylor Wessing and Vince Neicho of Allen & Overy.
We focused on the importance of cooperation and the role of the judge. Whatever merits lie in the US approach to litigation, the UK is a more flexible forum for genuine attempts to arrive at an answer which meets the interests of justice at the lowest cost. This is partly a matter of differing national characteristics, pitting the UK preference for flexibility (itself inherent in the use of the word proportionality) against the US desire for bright lines and certainty.
As I write this, months later, some highly respected US experts are tearing into each other about the accuracy of technology-assisted review and how that affects justice. The rest of us look on with bewilderment, respectful of the technological and intellectual ferocity deployed in such debates, but bewildered as to what any of it has to do with affordable, practical justice.
Then it was off to the airport and to Las Vegas for Guidance Software’s Enfuse conference (formerly CEIC). I have been attending this event since forever and seen it evolve, as Guidance Software itself has evolved, from a focus on eDiscovery and forensics into a wider arena in which cyber security and risk management dominate. This was reflected in my three panels (in one day), only one of which was on eDiscovery.
That was billed as “Judicial perspectives on current eDiscovery issues”, which, thanks to illness in the judge’s family, was a judicial panel without a judge. Picture the scene: a room full of people who have turned out to hear a well-known judge talk about the issues of the day, and your opening line is that there is no judge.
Who do you turn to when you find yourself short-handed for a panel at short notice? The test of the star panellist is that they will turn out at a moment’s notice at 8:30am on the first day of a conference to talk knowledgeably about the advertised subject. We asked Sheryl Falk and Scott Cohen of Winston & Strawn if they would do the panel, and they both agreed by return, joining me and Ed McAndrew of Ballard Spahr who was booked to appear anyway. I half-expected some of the audience to leave when I explained that we were judge-less. They all stayed.
We got through a lot of subjects; the scope of discovery and sanctions for failure; competence; cooperation; the judicial management of discovery; predictive coding; the conflict between privacy and discovery; cyber risk in the aftermath of the Panama papers disclosures; discovery of social media and personal accounts and devices. All these satisfied the criteria of topicality.
With not much pause for breath, I moved on to moderate my next panel. This was called Where’s my crown jewels? The link between data privacy and cyber risk management with a panel comprising Simon Collins and Matt Miller of EY, Mitch Impey of Danfoss and Nick Pollard of Guidance Software.
We went through a number of topics relevant to companies and their lawyers: the implications of the GDPR; how you go about finding the Crown Jewels of data amidst the rest; the role of the Data Protection Officer and Chief Privacy Officer; the management of the risk of cyber breach; the implications of the replacement of Safe Harbour with the Privacy Shield.
It was at this conference, many years ago, that I gave my first talk to a US audience on the implications of EU data protection law. Back then, many in the audience found the concept of privacy both incomprehensible and risible – who would stand between an American and his right to demand every document which might conceivably be relevant to a case? We have moved on a lot since then, with most audiences including people who have had some experience of dealing the data protection and privacy implications of discovery from the EU and elsewhere. We are now asking them to take the next step and prepare pre-emptively for things which are to come.
My third and last session of the day was a repeat of one I did with Guidance Software at Legaltech and with the same star cast. Ed McAndrew of Ballard Spahr (for the second time that day), Adam Isles of the Chertoff Group, and Scott Carlson of Seyfarth Shaw joined me to talk under the heading Time is not on your side when it comes to data security.
We talked about prioritising risks, best practices to minimise future risk, interaction with the government in its various forms, reacting to a cyber attack and (often overlooked), the benefits of aligning security, privacy and IT modernisation plans, not least as a differentiator between your business and that of others.
After all that, I was unusually grateful to see my comfortable chair on the plane.