October 23, 2012

Divided by a Common Language (Again): U.K. Perspectives on E-Discovery

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July/August 2008 Issue | Volume 34 Number 5 | Page 22

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Divided by a Common Language (Again): U.K. Perspectives on E-Discovery

It has long been said that the English and the Americans are divided by a common language. We chortle when the English call trash cans “wheelie bins,” a chat a “chin wag,” and so on—and make no mistake, they chortle at our vernacular, too. But the variations in language also extend into the electronic discovery arena, and if you’re ever involved in a U.K. litigation, you won’t want to consider those differences a laughing matter.

We recently ventured to London to get a taste of how electronic evidence and discovery issues differ in the United Kingdom. We couldn’t even get past the first question about electronic discovery without being gently reminded that, in the U.K., it is electronic disclosure, not discovery. We didn’t get past the second question without being told politely that the correct term in the U.K. is forensic computing, not computer forensics, and were gravely advised that “forensic” is an adjective, not a noun. Those things, however, were just the first quick points in a range of lessons learned from interviewing a cross-section of folks involved in what we’ll call EDD for short—which, in the interest of international relations, translates to electronic data discovery or electronic data disclosure.

The experts interviewed were Laurie Watt and John Sykes, senior counsel and partner, respectively, of the law firm Charles Russell; Ian Henderson, president of Advanced Forensics; Darren Pauling and Rahoul Bhansali, forensic tech operations director and senior forensic manager, respectively, for KPMG; Adrian Palmer, director at Palmer Legal Technologies; and Dr. Ian Mitchell and Dr. Carlisle George, both senior lecturers in forensic computing at Middlesex University. Here are highlights from our question-and-answer sessions—which taken as a whole will illustrate a very important point for those considering cross-border work: Every country has its own culture and rules and you’d better be prepared before you dive in.


Which Country Is in the EDD Lead?

Although electronic evidence came to the forefront at roughly the same time in both countries, our interviewees generally agreed that the United States is now the acknowledged leader in computer forensics and EDD, largely for two reasons.

First, the British are simply less litigious, so there are fewer cases requiring electronic disclosure. Second, in the U.K., unlike in the States, the general rule is that the loser pays the winner’s costs, including attorney’s fees—which in itself does a lot to discourage frivolous litigation. Mind you, after the case is over, the winner’s costs may be (and often are) challenged. This results in an assessment of the costs, during which the invoices get nitpicked or the parties reach a settlement that both can live with. Otherwise, their argument is brought before a “costs judge,” which constitutes a roll of the dice.

In light of those factors, computer forensics and electronic discovery are used far less than in the States. As Laurie Watt observes, “We’re out of the infancy stage, but probably more in the toddler stage.” He expects that to change over time, as the U.K. surrenders its adherence to paper. For the moment, though, most discovery at his firm, Charles Russell (one of the top 50 firms in London), and most of the evidence presented in court is in paper form. Only the very largest cases tend to be presented electronically, even when all the data gathering and review have been done electronically. Watt also notes that attitudes will change as more younger, tech-savvy judges come on the bench. But for the moment, some clients are still resisting even simple steps like converting paper documents to searchable PDFs simply because of the expense.

Ian Henderson sees harvesting of evidence from computers done in less than 5 percent of cases. Henderson, who runs a very small but well-known computer forensics firm, goes back long enough that he remembers “cutting my teeth on Norton Disk Editor as my first forensic tool.” On his wall is a beautiful computer-generated timeline for a case, which his client agreed to use in trial preparation but firmly declined to use in court. The client’s dismissive comment was simple: “The judge doesn’t like technology.” In this manner is great wall art born.

Henderson describes British litigation as “less argumentative than the U.S., rather more gentlemanly.” Even expert challenges, he reports, are fairly rare. If the expert has a reasonable C.V. and has previously qualified as an expert, he says there is almost no chance of a challenge.

Also, the general level of lawyer knowledge about electronic evidence was universally regarded as lower than in the States, although U.K. lawyers are taking more classes to come up to speed, with the number of CLE courses on EDD growing.

Everyone seemed to agree that a lot of U.S. computer forensics firms got burned when, as Henderson puts it, “they parachuted into the U.K. charging premium prices, only to find there just wasn’t the market that they had imagined.” Or as Adrian Palmer puts it, “Corporate counsel in Britain have much less of an appetite to spend money on electronic disclosure, unlike their American counterparts.”


What’s the Major Difference?

All the interviewees agreed that in the U.K. EDD is principles based, whereas in the United States it’s rules based. Everyone believed that this is the biggest difference—and that the principles-based system is better.

Now, to illustrate the difference: U.K. clients must certify to the court that they have fully disclosed relevant information to the court. If their certifications are later proven false, then they will face sanctions. In extreme cases, where an attorney is aware of the deliberate destruction or suppression of documents, the ultimate sanction would be for the attorney to be “struck off the roll of solicitors”—in our terms, disbarred. As a result, attorneys are well motivated (ethically and practically) to sternly admonish clients that there will be no “hide the ball” tactics. In the States, we tend to administer sanctions, but there’s little fear of disbarment—although we have experienced a rash of U.S. opinions in the past year and a half granting sanctions in terms of playing fast and loose with EDD.

John Sykes says simply, “If a client suggests that a particular document not come to light, I make it clear that it must be produced. No exceptions.” As he points out, knowing how seriously solicitors take their disclosure responsibilities means that clients don’t do a lot of shopping for solicitors based on whether they think they can control what is to be disclosed.


How Does Privacy Factor In?

The perspective on privacy is another major difference between EDD here and across the pond. The European Union Data Privacy Directive, passed in 1995, required member nations to enact laws upholding the directive. You might think all the laws would look pretty similar since they were based on the same directive, but you would be wrong. In the U.K., the rules are interpreted liberally to allow disclosure, especially of employee communications in workplace environments. The British courts, according to Henderson, are focused on “the fair disposition of justice—they want to know if the data is relevant—if so, it comes in.” Palmer notes, though, that you must be sure that there is a very legitimate business interest in disclosure as you are balancing the privacy rights against the employer’s interest.

Although examination of workplace activity is standard in the United States, and liberally allowed in the U.K. where a legitimate interest of the company is involved, and particularly where there is a “no privacy on company computers” policy, the Continent is far more strict. In many countries, an employee’s e-mail on a company computer is private—period. Many hurdles must be surmounted before that e-mail can be examined for use in a case. France requires individual consent, Belgium requires that data be processed locally, and so forth. As Darren Pauling notes, some U.S. companies have discovered to their chagrin that “Captain American can’t just go into Europe and grab data.” Many American firms have been burned by their ignorance of European privacy laws.

An interesting wrinkle in the U.K. is that if there’s sufficient evidence to believe that a home computer may have been used for business purposes, Palmer says you can get to the computer pretty darn quickly—something that seems to be more of a sticking point with American judges, who tend to more closely guard privacy at home. In fact, British laws allow for the granting of an ex parte order, which allows a forensic examiner, accompanied by a solicitor, to go unannounced to a home to image a computer on the spot, and sometimes to remove it for imaging. Palmer says the same procedure can be applied at the workplace as well. This is certainly a civil process that we don’t have in the States.

Interesting question: Will the U.K. allow shipment of data to the U.S. for a case? Our experts say yes, but it must be in response to ongoing litigation. Moreover, entire images are not shipped, rather the responsive, reviewed-for-privilege data is transmitted.

One judgment the authors formed during the course of all these interviews was that American law firms would be well served (unless they have a presence and their own contacts on the Continent) to work through U.K. firms, where everyone “sort of” speaks the same language. English firms are well connected on the Continent and can provide valuable gateway services to U.S. firms. They’ve seen all the problems, they know the ropes and they can explain it to the Americans in English. In fact, it’s not unusual, according to Henderson, for some U.K. firms to find that as much as 50 percent of their work involves the Continent. Rahoul Bansali and Darren Pauling say that “the U.K. is the gateway into the Continent for many American firms.”


Are There Other Striking Differences?

In a word—yes. For one, according to Henderson, it’s fairly common in his country for two parties to have one expert, whether by agreement or because the court appointed a single expert. Special masters are a different matter. Although fairly common stateside, Sykes has very rarely seen the appointment of special masters to deal with e-evidence issues.

Another difference highlighted by Sykes is that the attorney-client privilege can be maintained on workplace computers, whereas U.S. courts have frequently pierced the privilege, particularly where there is a policy in place that says that no activity on the employer’s network is private and that the employer may monitor all such activity.

Bhansali and Pauling note that they don’t have the sort of traditional litigation hold that the United States does. Generally the preservation duty in the U.K. is triggered by a preservation letter, and there is no litigation hold where litigation or regulatory action is “reasonably anticipated.” Also, although there is less litigation, there is a great deal of U.K. regulatory activity, and many more cases stem from that than litigation.

In addition, the emphasis on records management that’s exploding in the States is only slowly making headway in the U.K. business world. The concept of being “litigation ready” is just gathering steam. It has begun to occur to British companies that perhaps it is foolish to hold on to -everything, but they are not yet taking out the trash with the speed of their American counterparts. Bhansali says he is just beginning to hear clients ask themselves, “What do we need to keep and why do we need to keep it?”

Plus, all of our interviewees agreed that there is very little spoliation. More common is the failure by companies to conduct a comprehensive search for relevant materials, although there was some disagreement as to how often this occurs. Henderson believes that businesses often do the minimum they can get away with, frequently not searching phones or peripherals for data. Much of this is driven by cost concerns or a lack of records management. It is also true that, nationwide, many lawyers aren’t particularly skilled in electronic evidence, and they sometimes fail to ask the probing questions necessary to uncover evidence. Henderson says it is “fairly common not to examine individual machines unless the need to do so sticks out like a sore thumb.”


What’s Ahead in the U.K.?

Computer forensics may never be the formidable presence in the U.K. that it is in the States, but we learned a little about the future from Ian Mitchell and Carlisle George at Middlesex University. This is “year one” of their forensic computing program, so they are feeling their way a bit gingerly, but with a great deal of excitement as the demand for this curriculum grows. Currently, only a small handful of universities offer forensic computing training, so Mitchell and George are proud to be among the pioneers. George is also a barrister, so their students are getting a healthy injection of the law along with the forensic computing. From their point of view, there is a wave of forensic computing technologists just over the horizon, all of them keen to understand the science of their trade and to refine the processes. And their entry into the field will be a very helpful thing for the lawyers and companies affected as EDD moves from the “toddler” phase into more widespread use, from commercial litigation to compliance issues, employment cases, criminal work and beyond.

Our thanks to all of those who were so cordial in granting us interviews and sharing their expertise with us.

About the Authors

Sharon D. Nelson and John W. Simek are President and Vice President, respectively, of Sensei Enterprises, Inc., a computer forensics and legal technology firm based in Fairfax, VA. They are coauthors of The Electronic Evidence and Discovery Handbook: Forms, Checklists, and Guidelines ( ABA, 2006).