She was one of the participants in a panel which I moderated at kCura’s Relativity Fest in Chicago recently. Our purpose at that panel was to compare and contrast the approaches taken in the US, in Ireland and in England and Wales. We looked not just at the use of technology like predictive coding, but also at the rules, the attitudes and the culture which surrounds the decision-making.
In this video, Karyn Harty talks first about the differing tests saying (I think rightly) that Ireland has the toughest test of all civil law jurisdictions as to whether discovery / disclosure is complete or not.
Despite the onerous test, Karyn Harty’s success in the Irish Bank Resolution case shows that courts can be persuaded by properly-articulated arguments and by expert evidence that predictive coding technology is appropriate, at least in some cases.
Karyn Harty also talks about the role of proportionality in deciding disclosure disputes. As she points out, proportionality is written into the rules in England and Wales. While this is true also of the US, there is “more subtle a focus” there, but there is still scope for a lawyer to say that any particular aspect of the discovery exercise is disproportionate.
There is, Karyn Harty says, less opportunity to run proportionality arguments in Ireland but it is nevertheless the right thing to do as long as you are very open about it. You may, she says, have to refer back to the court if you are planning to do anything which might be considered radical.