On 27 February, Benjamin N Cardozo School of Law is the host for an evening in honour of retired US Magistrate Judge James Francis and about-to-retire US Magistrate Judge Andrew Peck. You will deduce from its title From Da Silva Moore to Microsoft: The Jurisprudence of Judge James Francis IV and Judge Andrew Peck that the focus will be on the opinions delivered by these two judges, and specifically on those related to eDiscovery.

The Cardozo Data Law Initiative is joined by Relativity and ACEDS (the Association of Certified eDiscovery Specialists) in the persons respectively of David Horrigan, Discovery Counsel and Legal Education Director at Relativity, who will moderate the discussion, and Mary Mack, Executive Director at ACEDS, who will introduce the evening. The invitation to the event is here. I would like to be there, but 3,5000 miles of ocean stands in my way.

Though no enthusiast for US discovery as it is practiced, even I have to make two concessions in relation to its merits. One is that it has brought us some remarkably good technology, developed to cope with its demands. The other is that it has given us some very able judges who are committed to better discovery, and who contribute enormously to the development of clearer thinking and better understanding of good practice within the rules, not just in their formal opinions but in tireless work to bring messages to practitioners. Over my time of involvement in US discovery, we have seen some remarkable men and women who devote substantial amounts of time and energy to improving the eDiscovery world. I use the word “world” advisedly – many of their messages travel beyond their own courts and beyond the US.

Many of these people have retired or are about to retire and we will miss them. Two in particular stand out for me, and not just because I know them both and have done panels and interviews with them over the years.

The name of US Magistrate Judge Andrew Peck appears in judgments in almost every common-law jurisdiction for his work in promoting the use of technology in support of better discovery. He was the first US judge I ever heard refer to proportionality and cooperation as essential components of any discovery exercise. He was the first, in my hearing at least, to recognise that the allegedly overriding imperatives of US discovery should take account of the privacy obligations of the EU and other jurisdictions. I have done panels with him in the US, the UK, mainland Europe, Australia and the Asia-Pacific region – indeed, I am probably the only person who has had that privilege in all those different places.

Judge James Francis is another judge who has had influence well beyond the Southern District of New York where he sat until recently. His skill lies in a quietly-spoken ability to focus on the things which matter, balancing a rigourous attention to the rules and the law with a focus on practicality and proportionality.

The decision which brought him international attention was Microsoft v US aka Microsoft Dublin, the Dublin Warrant and, in its most recent form, US v Microsoft when it reaches the US Supreme Court a few hours before the event which is the subject of this post. The hot money seems to be on the Supreme Court upholding Judge Francis’s original decision that the US government is entitled in certain circumstances to access emails on a Dublin server. That is not a conclusion which I will welcome, for obvious reasons, but one can be pleased for a judge to see his or her thoughtful opinion upheld without being thrilled by the result.

These two judges will be joined by former US Magistrate Judges Ronald Hedges and Frank Maas for an evening’s consideration and celebration of their achievements both on the bench and and in their very great contributions to eDiscovery education.

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