I have been interviewing former Magistrate Judge Andrew Peck for several years now, and doing panels with him for even longer. Now retired from the bench, he is senior counsel with DLA Piper. I took the opportunity to interview him at Relativity Fest, where he was one of the participants in the judicial panel.
Andrew Peck’s role now is mainly advising lawyers at DLA Piper on discovery matters (not just “eDiscovery”, as he carefully points out). He advises also on litigation strategy, and on what will or won’t be persuasive to a judge. He is also there to do mediation, arbitration and, if a judge so decides, to act as a special master, especially on discovery matters. He is, I was pleased to hear, to continue on the speaker circuit which he has graced eloquently for so long.
Andrew Peck said that it was good to continue the work of Browning Marean – the “Pied Piper for discovery” as he called him. And, one might add, for DLA Piper, whose flag Browning flew around the world.
I had been moderating a panel for Relativity that morning, and Andrew Peck’s name had come up both as a trail-blazer in the use of technology-assisted review and analytics, and in the context of cross-border discovery. I had brought that up at my panel because his opinion in Da Silva Moore, known mainly for its focus on the use of TAR, had also been the first example known to me of a judge self-starting on international privacy constraints as a brake on US discovery. In Da Silva Moore, some of the documents were in France (and in French) and would have involved more work, time and difficulty even apart from the well-known French limitations on the export of data.
I asked Andrew Peck if US courts and lawyers have moved on since then. Are they more willing to accept that extricating documents from foreign jurisdictions is generally more difficult than collecting them in the US?
Andrew Peck said that there was greater awareness now, perhaps as a result of the GDPR and the US emphasis (over-emphasis, perhaps) on the GDPR penalties for breaches of privacy. At least in the big cities, judges were more aware of the issues. US v Microsoft (the “Microsoft Dublin” case), its appeals and subsequent overtaking by the CLOUD Act, had made the issues better known.
Andrew Peck said that in the past, judges had looked at the French blocking statute and saw it simply as the French thumbing their noses at US discovery. There was now more recognition that other jurisdictions view privacy as a fundamental right.
The Sedona Conference International Principles on Discovery, Disclosure and Data Protection are better known now, and are a resource available to judges who were required to strike a balance between US discovery requirements and foreign privacy restraints. The third of the Sedona international principles, reduced by me in this interview to “do you need this stuff anyway?” is more formally set out in the Sedona Principles thus:
Preservation, disclosure, and discovery of Protected Data should be limited in scope to that which is relevant and necessary to support any party’s claim or defense in order to minimize conflicts of law and impact on the Data Subject.
This is also a proportionality point which stands alone regardless of foreign statutes – it was always bound to cost a lot more money and time to collect data from abroad. Judges now ask themselves whether information is relevant and if it is proportional to collect and review it. Some of the factors in Aérospatiale (the 1987 case which set out a multipoint balancing test for courts to consider) overlap with newer considerations of proportionality.
Several magistrate judges well known for discovery opinions had retired at more or less the same time. I asked Andrew Peck if there was a successor generation. He referred in particular to Judge Catherine Parker who, he said, has delivered good discovery opinions, not least about Andrew Peck’s oft-reiterated cause, Federal Rule of Evidence 502d.
I asked Andrew Peck if he was optimistic for the future about the topics which he and I had talked about for many years. He said he was cautiously optimistic about the use of TAR, although he would have expected to see more decisions in favour of it since his Rio Tinto opinion. Perhaps lawyers are just getting on with it; perhaps the old grounds of dispute e.g. about seed sets have gone away with the spread of Continuous Active Learning.