I take every opportunity to interview Karyn Harty of McCann FitzGerald. Over the years we have discussed her involvement in the leading TAR case Irish Bank Resolution v Quinn, the use of eDiscovery tools and skills for non-disputes purposes, the effect of Brexit on Ireland, and the development of court rules for proportionate discovery.
Karyn Harty was in London for Relativity Fest London and we did a panel together in which she gave the Irish perspective on the proposed new disclosure rule for England and Wales. I took the opportunity to talk to her afterwards about the need for eDiscovery training for judges and litigators.
EDiscovery / eDisclosure is getting more technical, more expensive and in some ways harder to understand. How do we help people to handle it better and more proportionately? Karyn Harty began by identifying judges as critical in this process – they need to understand what is what is involved and have a general understanding of the tools and processes.
Barristers and solicitors are beginning to get to grips with eDiscovery – even if they are not expert, more of them now have an understanding of how it works. Karyn Harty observed that lawyers will increasingly be expected to understand eDiscovery as a regulatory matter as is happening expressly in some US states.
The are good practical reasons, she said, why it is at least helpful to understand the basics of eDiscovery. If your opponent understands what is involved, then you can have more constructive discussions and fewer rows, and get more quickly to where you need to be. This will be increasingly important for lawyers in England and Wales who, already required to have informed discussions with opponents, will have an enhanced duty to do so under the new disclosure rule.
I asked Karyn Harty how we can encourage people to come and get a better understanding of what is involved in eDiscovery – our context, as I have said, was the extremely informative Relativity Fest London, where both technical and procedural matters were discussed by expert panels and where discussions were to be had, for those willing to seek them out, with people who do this sort of thing every day.
Karyn Harty said that most of the people at events of this kind were those who already understood eDiscovery and engaged in it properly and frequently. We need to get out and talk to the very large number of expert litigators who are extremely good at what they do but who have not yet got to grips with the tools and skills needed to give eDiscovery properly.
So far as judges are concerned, Karyn Harty was not aware that Irish judges have had specific eDiscovery training. The are plenty of skilled lawyers in Ireland who are willing to help.
I asked Karyn Harty if Irish judges had a duty to manage cases, including eDiscovery, in the way that was increasingly expected in England and Wales. Ireland has new case management rules but a shortage of judges means that these have not been properly implemented. Existing judges do not have the capacity to take on more case management and it will be necessary to invest in that to achieve properly managed discovery.