Discovery Across Borders, Part Two: Strategies for Handling Multi-Jurisdictional Discovery and Data Collection

Discovery Across Borders, Part Two:  Strategies for Handling Multi-Jurisdictional Discovery and Data Collection - Findlaw.com

In the second part of their two-part article on international electronic discovery, Gary DiBianco, Gary Rubin and Matthew Blake (of law firm Skadden, Arps, Slate, Meagher & Flom LLP) point out that

"... the traditional notion of 'possession, custody, or control' over a document no longer is meaningful."

and

"... your attorneys and forensic technology vendors also must address the cross-border legal and cultural conflicts we discussed in Part One."

They provide a specific example for how a U.S. company with a France-based sales and marketing staff would address discovery issues:

"...you may need to engage an EU-based forensic technology vendor to host any French e-mails you collect in a location inside the European Union until you determine they can be transferred to the SEC in the United States. Alternatively, some U.S.-based forensic technology vendors are 'safe harbor' companies. This means the U.S. Department of Commerce has certified that they meet EU data protection requirements and would be able receive transfers of data without violating French law. This would allow you to maintain and analyze any data in the United States before turning it over to the SEC."

The authors make the point that while the objective is simple, namely to collect information in a compliant manner across borders, achieving this objective is not.