The recent changes to the longstanding Safe Harbour provisions, which relate to the cross-border transfer of data, have wide-ranging implications for all international businesses.
Just ask Jayne Rothman, the US-based general counsel at technology provider Epiq Systems, who spoke on the topic at an event at The Law Society last month in London. As she puts it, the changes are not only topical, but they touch on pretty much everyone.
Rothman focused her session on compliance issues relating to data transfer and the new so-called Privacy Shield arrangement that replaced Safe Harbour after a February agreement between the European Commission and the US Department of Commerce.
“It’s a vast improvement on Safe Harbour,” says Rothman. “Safe Harbour has been around for 15 years or so. Companies could self-certify under Safe Harbour but there was no real enforcement mechanism so there wasn’t a lot of comfort that it was being followed or how it operated. I’m not surprised there have been changes, I’m just surprised it took so long.”
Rothman has a deep understanding of data-related issues, having served as technology company Epiq’s senior legal adviser since 2006.
Epiq is one of the world’s leading providers of integrated technology and services specifically designed for the legal profession. The company’s products include those relating to e-discovery, bankruptcy, and class action and mass tort administration.
Rothman’s role sees her taking responsibility for all Epiq’s legal affairs and those of its subsidiaries worldwide. She is also adviser to the board of directors and its committees.
And the in-house team she heads is not extensive. There are just five lawyers and one paralegal, four of whom are based in the US, in Kansas City, including Rothman, and one in New York.
“When a firm proposes an AFA, it makes that firm a better partner”
“We manage all the legal matters of the company globally,” confirms Rothman. “I’d say we outsource less than 20 per cent of the work – things like SEC compliance, some litigation depending on the jurisdiction, IP protection and international law advice.”
The work handled by the in-house team includes litigation, IP, employment, data protection and privacy, commercial real estate and transactions, insurance and M&A.
“It’s less about complexity and more about time,” says Rothman, “and every single legal matter we outsource will have an Epiq managing attorney [which could be any member of the legal team] on it.”
A legal team with value-add
The team consists of Rothman, two corporate counsel, a senior legal counsel, and one lawyer who specialises in employment litigation.
“There are some specialisms across the group but the important thing is that most of the team have been working together for a long time,” comments Rothman, “I’d say five or six years for most of us. That’s a really nice value-add, we work together well.”
The legal team is entirely based in the US but Rothman does not rule out expanding it to international shores. She says that, generally speaking, Epiq’s international expansion has been driven primarily by client demand in e-discovery and claims administration-related services.
The effect of this on the legal team is that it has expanded its scope of work to include round-the-clock services and advising on international matters and regulations, including interfacing with numerous international legal advisers to ensure the company meets all the legal and compliance requirements that result from expanded international operations.
“There’s no-one in the UK at the moment in terms of the legal team,” Rothman confirms, “but if we were looking at a core member expansion we’d look at international. That said, we’re not currently looking at it. But at the end of 2016 we do plan to look at all the workflows and we may look at a range of options including outsourcing arrangements or an addition to the team.”
External relationships
Rothman, who worked in private practice at US firms including Weil Gotshal & Manges before making the move in house, is also passionate about refining and improving her working relationships with the external law firms she hires. That can encompass many aspects but cost is always likely to be at or near the top of a general counsel’s list.
“We’ve had a lot of success with alternative fee deals and one-off arrangements,” says Rothman. “We’ve used traditional hourly rates but over the past five years a growing number of law firms have started proposing alternative fee arrangements [AFAs] including things such as ‘not to exceed’ arrangements. Firms are a lot more proactive than they used to be.
“I definitely see this as a value-add and a differentiator. When a firm is open to it and, better yet, proposes it, it makes that firm a better partner. We have a budget and if that firm understands how to help you achieve it then that already lines them up as a strategic partner right there.”
Case-by-case
Epiq does not operate a formal panel but instead selects its outside counsel on case-by-case basis.
“We work with top counsel all around the world,” adds Rothman.
That list includes Kirkland & Ellis, with Rothman working with a number of partners at the firm, so far exclusively in the US. These include Richard Porter, Robert Hayward, Ana Sempertegui, Kyle Gann, Matthew Solum and Jay Lefkowitz.
Also in the US, Rothman has sent out IP-related matters to former Holland & Knight partner Carla Calcagno who now runs IP boutique Calcagno Law.
“Carla is an absolute pleasure to work with,” adds Rothman.
In the UK Epiq’s lawyers have included Baker & McKenzie and Linklaters.
