Information Governance and E-Discovery

In May of 2015 I had the pleasure and honour of sharing the stage with Chief Magistrate Judge Elizabeth Laporte at the IQPC 10th Anniversay Information Governance and eDiscovery Summit held at the Waldorf Hilton in London. The session was chaired by Chris Dale of the excellent and continually informative Edisclosure Information Project and addressed the Global Impact of eDiscovery and Information Governance within the context of data collection for cross border cases.

The session was allocated a generous ninety minutes of Conference time, starting shortly after 9:00 pm. This enabled the presenters to make a brief presentation on issues that appeared to be relevant to the general topic. My presentation addressed common themes present in the e-discovery regimes in the APAC region – Australia, Singapore, Hong Kong and New Zealand.

Following the presentations Chris led a discussion that covered a wide range of discovery and disclosure issues. The approach of the US Courts recently exemplified by the case of In the Matter of a Warrant to Search a Certain E-mail Account Controlled and Maintained by Microsoft (District Court SDNY M9-150/13-MJ-2814 29 August 2014 Judge Preska).

One of the common themes emerging from this discussion was that although a local court may purport to exercise “long arm” jurisdiction in the case of content located off-shore, compliance with local data disclosure requirements may come into play, rendering the disclosing party liable to possible sanctions if compliance is not forthcoming.

Another issue that we discussed was that of the need for lawyers to understand and appreciate the way in which technology is used in developing areas of law and in the ediscovery field in particular. In the United States an understanding of technology is a pre-requisite for competence to practice in some areas and as we move further and deeper into the Digital Paradigm, I consider this to be an absolute necessity. Not only lawyers. More and more cases involve aspects of technology either as the subject matter of the dispute or as an aspect of the evidence that is place before the Court. It is essential that Judges have a working knowledge of some of the more common information technologies. This is something of a contentious issue for there is a school of thought that suggests that judicial understanding of technology can be reached per medium of expert evidence. That proposition may have a limited degree of validity in the case of the subtle aspects of the workings of the technology, but should not extend to ocnstant and repetitious explanations of the general way which a packet switching network operates, or the nature of email metadata and how it operates.

The Conference was a valuable one. The sessions were extremely interesting and highly relevant, all of them presented by experts in the field. I am grateful to the organisers for inviting me and to Chris Dale for his excellent Chairmanship of our session and his insightful discussion management.

I prepared a paper for the Conference delegates and a copy is available on Scribd or may be perused here.

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