I recently interviewed US Magistrate Judge Andrew Peck, one of a series of interviews at ILTA in Las Vegas. We covered two subjects, one of which is an example of the other. The narrower topic was the international spread of the acceptance of technology-assisted review in litigation; the wider subject is the increasing willingness of jurisdictions to watch what happens elsewhere and to consider adopting at least some of the ideas which seem to work.
The context was provided by two forthcoming events in which Judge Peck and I are to be involved. The first is Relativity Fest, taking place in Chicago from 22-25 October, when I will be the moderator of a panel called the United Nations of TAR. The panel members are Judge Peck himself, Justice Peter Vickery of Victoria in Australia, and Karyn Harty of McCann FitzGerald in Dublin. If the rest of the world has been unwilling to adopt the general US approach to litigation and to discovery, it has certainly looked to the US, and to Judge Peck’s opinions in particular, for encouragement to bless the use of technology-assisted review.
Karyn Harty persuaded the Irish High Court to approve the use of TAR in Irish Bank Resolution v Quinn; Ireland has perhaps the most strongest test for discovery completeness in the world. Justice Vickery allowed its use in his judgment in McConnell Dowell Constructors in Victoria. Victoria has also adopted Practice Note SC GEN 5 Guidelines for the Use of Technology, which include the first formal recognition by rule-makers that TAR is an acceptable way of dealing with large volumes of documents.
As Judge Peck points out in this interview, it seems likely that other jurisdictions such as Canada, Singapore, Hong Kong and New Zealand will consider whether the same principles are applicable in their own courts.
The second forthcoming event is Technology in Practice, due to take place in Toronto from 8-10 November and hosted by Commonwealth Legal and Ricoh. Judge Peck and I are taking part in two panels there. The first is again about technology-assisted review; we will be joined by Maura Grossman whose name, like Judge Peck’s, turns up as authoritative in most opinions, judgments and decisions involving TAR around the world.
One of the barriers to TAR adoption is that many lawyers are not mathematically inclined and It is inevitably an uphill struggle to encourage them to accept a statistics-based model, even though it is the statistics which provide the validation and verification which lawyers crave. This discussion led Judge Peck to make a point he brings up often – it is wrong to hold TAR to a higher standard than other methods.
He also suggests that lawyers are now adopting the use of TAR without dispute, something he deduces from passing references in his court. Where the parties are not in dispute about it there is nothing for judges to write opinions about.
I observed that much the same happened in the UK until the Pyrrho decision, Before that, lawyers would ask for some sign of judicial approval of technology. They now have it in the form of the well-articulated judgment in Pyrrho and no longer need to argue about the principle, even if there may be grounds for dispute about the actual application of the process.
That led us into the wider discussion about adoption of ideas from elsewhere. As Judge Peck rightly observes, I have a particular dislike of the often-heard American position that “the US is two years ahead of the rest of the world” when it comes to discovery. He tells of a pilot program in the District Court in Chicago and other US jurisdictions to try what Judge Peck refers to as “British disclosure”, where parties must disclose material which does not support their case as well as that which supports it. This, he said, was tried more than 20 years ago but met such opposition that it was rendered ineffective. It will be interesting to see if the pilot produces the conclusion that the costs of litigation go down as a result.
This wider subject will be the subject of my other panel at Technology in Practice in Toronto. I am moderating a panel with Judge Peck and Justice Fred Myers of the Ontario Superior Court of Justice at which we will talk about the developments in discovery (and not just TAR) in various jurisdictions, with some ideas as to what might be portable between jurisdictions.
I have written an article about that called A Judicial Look at Critical eDiscovery Issues Across Different Jurisdictions for the Technology in Practice blog which gives you some idea of our topic.