Among the people on my list for video interviews at Relativity Fest London (I wrote about that here) were US Magistrate Judge Andrew Peck and David Horrigan of kCura. It occurred to me that I could save some time by getting David Horrigan to interview Judge Peck, and the result of that is here.
David Horrigan picked up on some of the points which had come up in our panels, first on cross-border discovery and data protection, and then on technology-assisted review. Things are changing under both of these headings and there is, perhaps, more sharing of ideas than hitherto.
As to privacy and data protection, David Horrigan said that there was a time when US courts, faced with EU data protection, would simply say “this is our law – Europeans be done with it”.
Judge Peck agreed that there were too many decisions saying exactly that; the position is changing, however, and for more than one reason.
One of the factors is the Microsoft Dublin case where Microsoft resisted US government demands to hand over emails. The appeal was really a matter of statutory construction – what does the antediluvian Stored Communications Act mean for a US company where data is in Ireland? Judge Lynch’s approach in that appeal opinion was to draw attention to the fact that the court did not know the nationality of the owner of the emails – if he or she were Irish rather than American, what right did the US have to demand emails?
There is, Judge Peck says, more respect shown to EU privacy than we used to see in US courts. Ten years ago the answer would have been “You are in my court – produce the data”.
Turning to technology-assisted review, we are seeing ideas flowing both ways across the Atlantic. The master in the Pyrrho case quoted Judge Peck’s decisions, not least Da Silva Moore. We have now seen a practice note in Victoria, Australia, together with some case law, which seems to be advancing the idea that TAR is an acceptable means of finding relevant documents for discovery (I wrote about the Victoria developments here).
Judge Peck said that, having seen TAR decisions in Ireland, in England and Wales, and in Australia, we are left with New Zealand, Hong Kong and Singapore as the next likely candidates for the a decision approving of the use of TAR. As he points out, it is unlikely that such a judgment will come out of continental Europe.
Coming back to privacy, Judge Peck talked about the effect of the General Data Protection Regulation which will impose severe penalties, financial and otherwise, on companies who break it. One of the difficulties with resisting claims in the US on the basis of EU data protection laws is that US courts have been unable to find examples of people being punished for breach and, in cases going back to Aérospatiale in 1987, the courts have relied on the fact that no adverse consequences are likely to ensue if a company is in breach of EU law. That may now change.
Judge Peck ended with the hope that the EU will recognise that there is something valuable in US discovery and the ways can be found to balance US requirements with EU (and other) data protection restraints.