The unsuspecting young American associate lawyer sent to manage the Discovery Process at his firm's European client is in for a very rude awakening. One of the first things he notices is that very few people outside the legal department have any idea what it is he's up to or why. In the States, most executives have come to understand that the lawyers occasionally run rampant through everybody's file drawers and cupboards. Even if they're not enthusiastic about the Discovery Process, they at least know to stay out of the way. They know the lawyers need paper to fight the enemy. They know paper is the ammunition of the commercial litigation wars.
In Europe, a nosy US lawyer is more often regarded as the enemy, rather than the white knight he believes himself to be. His demand to see "all" the "relevant" Documents is almost always misunderstood. First, Europeans almost refuse to accept that the word "all" means quite a bit more than just a copy of one file containing at least one copy of every letter sent and received. It seems ridiculous to pay the lawyer to wade through each and every copy of each and every piece of correspondence, let alone the internal memos written at the time. Second, some European executives believe they know very well what the word "relevant" means and try to make a preliminary selection of what the lawyers are allowed to look at. They don't mean to obstruct justice, they just have a very highly developed, and in this case misplaced, sense of how best to protect their company.
Many European managers seem to have a strong emotional involvement with their companies. Even more so than in the States, executives tend to look on the correspondence they have created in the course of their employment as their own personal property. When a strange US lawyer starts prying into their files, they react to it almost as if it were an invasion of their personal privacy. A great deal of sensitivity and understanding is required to get the Document Collection job done properly.
Most executives in America realise that a Document Retention Policy is, in fact, a document destruction policy. While written in terms of how long documents must be preserved in the files (e.g. accounting and tax requirements), the implication and main purpose of the policy is to insure the destruction of old documents as quickly as the law allows. It will come as a great surprise to many US lawyers that the primary purpose of the Document Retention Plans in most European companies is to actually retain the documents. All of them. Forever! That is, of course, provided the executives are complying with the Document Retention Policy. As often as not, the new boss may simply throw out everything left behind by his predecessor. As jobs disappear with downsizing and restructuring, more documents are pitched along with the people who leave.
Language forms another major problem area for many American lawyers. Except for correspondence with foreign companies, most French and German companies keep their files in their own languages. Belgian companies keep files in both French and Flemish (like Dutch, but far from the same) and Dutch multinationals are very likely to have files in as many as ten different languages.
If a lawyer can't read a document, he can't decide if it's relevant. The solution for small numbers of documents is to have a US lawyer sit down with a bilingual lawyer who tells him what the document says. When there is a large number of documents, this solution very quickly shows its weakness. It is too time consuming and the results are not available to others working on the case (unless the lawyer is making and distributing copies of his notes). At a cost of about US$ 50.00 (which is one man-hour) per page, full text translation, while ideal, is much too expensive and takes too long. One solution is to have bilingual lawyers read the non-English documents and write a short English summary in a searchable Database. This process is more completely described in the sections "Document Review" and "Translating" found under Litigation Services.
Europe is running behind America in its recognition that e-mail letters are correspondence and constitute Documents for the purposes of US litigation. Sometimes the only clean copies of early drafts of letters and agreements will be those on disc. Policies for the retention of electronic files, whether e-mail or drafts, tend to be left to the creativity of the secretaries and becomes rather ad hoc. Confusion increases as more and more executives deal with their own electronic post. Any electronic filing system that departmental secretaries could have imposed gets lost in the speed of the day to day business. If you thought it was hard to get them to open their file drawers for you, just wait 'til you ask to have a look in their laptop.
That's right, simple copying is a pitfall, especially if there is a tight deadline. Don't wait too long to start organising the copying and scanning operations and don't ignore the supervision of the people doing the work. Very few copy shops work overnight and even fewer have ever had any experience with US litigation. Almost no one in the scanning industry is accustomed to the volume and sensitivity and timing of large scale document processing for litigation. They are dangerously unaware of the potential legal consequences of damaging or losing a key original.
The US now has companies specialised in litigation support. Nearly all the routine work of preparing documents can safely be entrusted to these experts allowing the lawyers to quickly and confidently get down to the work of legal analysis where there high fees are more than justified by their added value. This is far from true in Europe. The basic procedures you take for granted in the States simply don't exist in Europe. You have to explain it all and physically stay on top of them while they do the work to insure it gets done right.
Lawyers who did discovery in the US twenty years ago would recognise the difficulties here. The work they did then of training the business community to accept and even support the Discovery Process has only just begun in Europe. US lawyers cannot assume that the co-operation they need from their clients can be had for the asking. You have to earn your clients respect and support through reason, patience and understanding.
On the purely practical side, Too much lawyer time needs to be spent educating and supervising clerical and support staff in the most basic procedures of document handling and preparation.
As my former English secretary always told me when she was uncertain of my success - "I wish you the best of British Luck."
