When I first saw the length of my interview with Karyn Harty of McCann FitzGerald, filmed at Relativity Fest in Chicago, I wondered if I ought to pare it down a little. Having listened to it, I find the whole thing valuable and have kept it all (it runs for less than 10 minutes).
Karyn Harty was the partner who persuaded the Irish court (and then the Court of Appeal) to permit the use of technology-assisted review in Irish Bank Resolution v Quinn. Since that case, she says, the use of TAR has become more widespread, at least in bigger Irish firms, partly because there is now judicial authority for its use and partly because lawyers and their clients are more familiar with TAR and the value that it can deliver in keeping eDiscovery costs down while complying with the discovery rules.
The technology itself has evolved – on the day of the interview, Relativity made further announcements about its development of Active Learning technology, which Karyn Harty welcomes. She observes also, however, that different technologies, including TAR 1.0, need to be understood by lawyers so that they can choose what is right for the case – McCann FitzGerald is technology-agnostic, knowing which tools will be right for which cases.
Turning to the court and rules, Karyn Harty is encouraged by the appointment of Frank Clarke as Chief Justice. In a recent speech he talked positively about the court’s attitude to technology and about the potential for improved access to the courts.
Karyn Harty is on a committee which has drafted recommendations for reform of discovery, to bring greater proportionality, to “cut out all the rubbish”, and to permit lawyers to get on and deal with documents which matter while still requiring full and frank discovery.
The focus, she said, must be on the difference between “relevance” and “materiality”. Irish lawyers see the English test [documents which are supportive of or adverse to the case of the giver or any other party in Rule 31.6] as being too lenient and likely to leave out material which actually matters.
Ireland, Karyn Harty says, has a culture of sanctions for discovery failures and believes that officers of the court should face a level of censure if the procedure is not done properly.
Most common law jurisdictions face a conflict between the rights and duties of solicitors to decide for themselves what is an appropriate level of discovery, on the one hand, and the duty of the court to anticipate and intervene where necessary. Karyn Harty’s view is that parties should get on and give discovery but then be required to explain how they did it, so that other parties can challenge it before an application is made. This contrasts with the position of England and Wales which, even before the proposed new rule, lays emphasis on anticipating discovery with the court enabled (and, indeed, required) to give its input into the scope, method and cost of discovery before the work is done.
While on the subject of Irish discovery, here is an article which Karyn Harty wrote on McCann FitzGerald’s blog about the need for discovery reform. She sets this in the context of Ireland competing for international disputes work – see my article Reminders that there are rivals to London’s courts which goes wider than Ireland as potential contenders for work which his hitherto come to London.
Lastly, there is an interesting article in the Irish Times of 1 February called Survival of law firms depends on innovation. It is largely about Karyn Harty and McCann FitzGerald and focuses on finding new ways to do things better for the clients, for the firm and for its lawyers.