It has become a habit at Relativity Fest that my last interview is reserved for David Horrigan, Discovery Counsel & Legal Education Director at Relativity.

One of the reasons for leaving it until the end is that David Horrigan is involved in so many panels that it is hard to catch him until the show is nearly over. This year he took part in ten different sessions over three days.

The best of those, he said, were the two which involved judges. One of those was the traditional judicial panel, now in its sixth year, at which judges survey the eDiscovery cases which have implications for litigators. You can find Relativity’s account of the judicial panel, written by Sam Bock, here.

A recent spate of judicial retirements means that there is a growing body of former judges with expertise to bring to the subject. A panel called The State of the eDiscovery Union, using a game-show type format, involved former judges Andrew Peck and James Francis.

I spared David Horrigan one of his panels by moderating the international panel (I wrote about that as part of my overall review of Relativity Fest) and David Horrigan asked me about it for the second part of this interview.

An international panel needs to cover two things. The first is “the US contra mundum”, that is, the conflict between US eDiscovery demands and the increasingly restrictive privacy and data protection restraints in the EU and the rest of the world. When I first spoke on the subject in the US, audiences found it hard to believe that anyone would stand in the way of honest American lawyers complying with the discovery demands of a US judge. There is now much greater awareness of this, partly because of increasing muscle-flexing by the EU (and not just with the GDPR) and partly because of increasing awareness of the value attached to privacy within the US. California has taken the lead, but it is not the only state developing privacy protection.

The other subject of an international panel is the developments within other jurisdictions which may be of interest to US audiences. I gave the example of the disclosure pilot in England and Wales, now in place for 10 months. It imposes a greater requirement for parties to discuss and to try and agree the proper approach to disclosure, including the obligation to complete a form saying what they have agreed and not agreed. There is also a much greater role for the courts.

As David Horrigan observes, these subjects were ably covered at Relativity Fest London by Ed Crosse of Simmons & Simmons, a member of the working party which devised the new practice direction. We hope to bring an update at next year’s Relativity Fest London which takes place on 12 May 2020.

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