Published by the American Bar Association Section of Litigation • 321 N. Clark Street • Chicago, IL 60654 VOL. 25 NO. 1 FALL 2010 Pricing Processing in The UK’s Bribery Act and E-Discovery: Keep the the FCPA Compared Invoice from Being a Surprise By Richard C. Rosalez, Weston C. Loegering, and Harriet Territt By Seth Eichenholtz, Esq. A E fter much deliberation, the United Kingdom’s (UK) -discovery continues to confound law fjrms and clients Bribery Bill received Royal Assent on April 8, 2010, and with a lack of consistency in pricing. This lack of con- became the Bribery Act. Now set to become effective sistency may have many reasons, likely due to various in April 2011, the Bribery Act is the UK’s effort to modernize vendors having very different internal costs owing to the wide its anti-corruption laws and potentially take a lead role along- range of core competencies and services that vendors in the side, if not an outright attempt to step ahead of, enforcement e-discovery space purport to offer. But perhaps the most criti- efforts of the United States. 1 The Bribery Act is far reaching cal reason for the lack of consistency in pricing is that vendors and signals a signifjcant shift in the criminalization of corrup- have been able to take advantage of the fact that both law fjrms tion as another major economic power seeks to police graft and clients are all over the map in defjning specifjcally what around the world. “processing” means in the e-discovery lexicon. Processing data in e-discovery means different things to different people and Background pricing for processing has followed suit. The previous statutory criminal law of bribery was “functional,” Of all the major hurdles in any e-discovery engagement, but “old and anachronistic” with “inconsistencies of language perhaps the biggest challenge is being able to foresee the costs and concepts” resulting in a bribery law, which was “diffjcult to of processing the data. Processing can also become the most understand for the public and diffjcult to apply for prosecutors expensive component of litigation, short of a long and drawn- and the courts.” The foreword to the Bribery Bill noted the UK’s out document review. The reason for this is that there has been reputation as “one of the least corrupt countries in the world” no uniformity amongst e-discovery vendors regarding how to as well as the perils of bribery: “Bribery is by its nature insidi- categorize the various elements and issues inherent in process- ous; if it is not kept in check it will have potentially devastating ing data in e-discovery nor what those costs should be. And it consequences.” 2 The UK has long been a party to international is very easy to envision a case with current market processing treaties that combat corruption and emphasize the seriousness costs where the processing costs alone can quickly reach six- of the problems that corruption poses, such as the United Nations fjgure sums. So to the extent that one can police, lower, and Convention Against Corruption, the Organization of Economic perhaps best of all, predict that pricing, this is a critical issue (Continued on page 13) (Continue d on page 18) Highlights Third-Party Financing of Commercial Litigation, Part Two By Holly E. Loiseau, Eric C. Lyttle, and Brianna N. Benfjeld ....................................................................................................................................... 3 Jurors’ Perceptions of Ethnic Minority Attorneys: Are We in a Post-Racial Era? By Mark R. Phillips Ph.D. ............................................................................................................................................................................................. 8 Practice Tip Jean Walker Tucker .................................................................................................................................................................................................... 19 The In-House Litigator Spotlight: Cathy Lamboley’s Five Keys to Success By Haley Maple and Jacqueline Taylor ........................................................................................................................................................................ 22
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