Legal process outsourcing to London in Russian cases?
6 December 2011
Russian claimants like to litigate in London because we have common law disclosure and Moscow doesn’t.
Of course, other factors play a part. Contract enforcement, protection of property rights, an unbiddable judiciary and the outside chance of getting a freezing order are also important. But for some Russkis, the UK is an attractive litigation destination because there isn’t a more efficient way to obtain every last scrap of information about your opponent’s hitherto unknown business dealings than an order for disclosure from a High Court judge.
However, in the context of the ongoing debate about legal process outsourcing, it makes little sense to conduct disclosure in London for Russian-language cases. There is an alternative, even if, so far, few firms have been willing to consider it. The response to the suggestion to move disclosure to a country where the native language matches that of the evidence is, often, “I’m paranoid about confidentiality”. Yet this misses the point about document handling and security.
Any journalist, politician or intelligence officer knows that the risks associated with document leakage are not due to technology failures. The risk is (almost) entirely human, since the security of any document is ultimately dependent on those with access to it. There is little point standing a burly security guard outside the door of a locked room where bundles of documents or data servers are stored when human rights law dictates that those who have spent ten hours reviewing facsimile copies of Lear Jet landing logs be let out to the pub at the end of the day.
Of course, the Data Protection Directive provides a justification to keep disclosure in London, since it places binding obligations on those who process personal data within the scope of EU jurisdiction, regardless of where the data is physically processed. This makes the transfer of personal data to, say, Ukraine, fraught with legal challenges. This problem goes to the heart of the debate about the use of certain cloud computing technologies for legal process outsourcing and document transfer. If you don’t know where “your” cloud is located, you can’t be sure that you comply with the Directive.
Happily, new technologies are already addressing this issue. Ultra-secure document transfer systems allow remote access to document review software positioned in a third country, while storing the data physically in the UK. These technologies work as a bolt-on to the preferred e-discovery platform, meaning that the data remains physically in London while the processing of it takes place abroad. This is not cloud computing technology; the data remains in the UK at all times.
Imagine a disclosure team comprising twenty qualified tri-lingual Georgian lawyers, based in Tblisi, working under the supervision of an English Common Law solicitor. Using an integrated secure communications system such as CARL, the document review paralegal logs on to a computer located in Tblisi via a biometrics entry system, thereby creating a secure network to a secure server hosted in the UK.
The UK server checks the computer in Tblisi for compliance with the firm’s security policy and disables the option to store or screen print any documents locally. Once the paralegal has passed the biometric check, CARL connects to the UK-located server and allows access to the document store. All activity is recorded and can be reproduced to prove evidential integrity while the data transfer is encrypted twice, at a level more than 70 times higher than that used by many UK-based internet banks.
The potential cost savings of this approach for the client are enormous, assuming that the costs of disclosure work is passed on as a disbursement after Crane v Canons Leisure Centre  EWCA Civ 1352. Even clients with the deepest pockets may well question whether to continue to pay for a service which can be undertaken at a fraction of the cost in a neighbouring republic, particularly if it can be demonstrated that the security of their company data is not compromised.
The idea of six months of document review in Gomel may be too much for some firms. But if the client insists, Lake Baikal for a few months, anyone? Partnership opportunities await you on your return.
Heidi Smith is a director of Russian Paralegals. She formerly worked for Accenture, Oracle and the Foreign & Commonwealth Office in the former Soviet Union.
Simon Land is business development director with ARL Communications Ltd.