Postscript from Munich

By | 24th November 2011

If bits and bobs can tickle my fancy in some strange metaphorical way I would like to share with you four observations which struck me from the panel sessions at the recent IQPC event in Munich.

  • Firstly, Ronni Solomon of King & Spalding, Atlanta referred to a case which resulted in high level executives having to give discovery of their private webmail addresses.In the memorably named Helmert v Butterball in the US District Court Eastern District of Arkansas Western Division (May 2010) J Leon Holmes US District Judge said:“Active, online data is generally considered accessible. Zubulake, 217 F.R.D. at 318-20. Thus, in addition to conducting a search of active and archived emails in Butterball accounts, the defendant should also search hard drives, laptops, and the personal email accounts of Walter Pelletier and Keith Shoemaker*fn11 for the search terms described above. To the extent that it has not yet done so, Butterball also should disclose all of the sources of ESI within its possession and control.”.This continues the trend towards disclosure of what many will consider to be private email accounts but as I have said before I do not think that anything has changed here. After all, if the “document” is discoverable/disclosable in the ordinary way, why should the courts not order the means by which the document can be viewed to be opened up to the other parties? All that is happening is that the courts in the US are making more of this in reported decisions than we are here. Let no one here think, however, that the same cannot happen in this jurisdiction. It can and it will and one day there will be a reported case..  
  • Secondly, hard on the heels of the report that Roger Bamber, Mills & Reeve partner, had said that “the hourly rate has been the most damaging for lawyers over my practising life”, there was the comment in a session on litigation budgeting that “I cannot tell you what the costs are going to be is increasingly an unsatisfactory answer.” Worth thinking about!..  
  • Thirdly, US Magistrate Judge David Waxse(Kansas) observed that lawyers were like particles in physics. “They change when observed,” he quipped. I really cannot better that! 
  • Last but not least, I was much taken with the remark attributed to Judge Grimm (Maryland) when commenting on the exercise by the United States of long arm jurisdiction over data sitting elsewhere in the world. The judge’s explanation for this and the opposite attitude traditionally adopted by European jurisdictions in relation to sensitive data is that everything stems from the Second World War. The reason why European countries are generally more concerned about data privacy is that issues of this kind relating to sexual orientation, race etc touched mainland Europe 70 years ago. On the contrary, these issues did not touch the common law countries such as the UK, the US, Australia and Canada in the same way and consequently those countries tend to be more relaxed about the movement of data than the civil law countries. I had not thought of it like that but it seems to make sense!