Framing the International E-Discovery Issues: Data Across the Globe - The Discovery Standard - Discovery News
Courtney Barton, Vice President of Industry Relations at Applied Discovery, discusses privacy and legal issues related to cross border discovery processes, especially in relation to "countries that see the American need for discovery as not only an invasion of privacy, but also an attack on foreign sovereignty". She contrasts data collection under relatively liberal U.S. discovery rules with data collection under the European Union Data Protection Directive (95/46/EC) and individual member states' rules, and in some cases criminal laws protecting data such as the French Blocking Statue (French Penal Code, Law No. 80 - 538, July 16, 1980). This creates a conflict for multi-national corporations located in the U.S. who are faced with collecting data abroad.
Ms. Barton suggests a variety of procedures for securing information from EU member states, including consent, the Safe Harbor Approach, Data Transfer Clauses, Binding Corporate Rules and provisions of Article 26 of the EU Data Protection Directive. In some situations a possible solution is to invoke the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters. She concludes that
"The wide range of international issues are just starting to surface, such as the differing retention regulations here and abroad that affect the ability to collect and preserve relevant materials, and the concerns when litigating abroad under a foreign regulatory scheme."
and points out that another complicating factor is the increasing use by corporations and law firms of the global community for document processing and review:
"These conflicts raise a whole host of ethical and security risks that need to be explored, as many countries that are popular outsourcing hubs may not have adequate privacy or data security infrastructure."