Migrated from eDJGroupInc.com. Author: Amber Scorah. Published: 2012-05-02 05:00:47Format, images and links may no longer function correctly. Many players within the oil & gas industry operate internationally, and this often results in discoverable data spread throughout the world. I interviewed Jonathan Wilan, Partner at Hunton & Williams LLP, to get some insights into international data privacy laws that have a bearing on eDiscovery, whether these laws create a conflict with discovery obligations in the United States, and what to do when a conflict arises.

Amber Scorah:  Can you give us an overview of international data privacy laws that may have a bearing on eDiscovery?

Jonathan Wilan:  When preserving, processing, or exporting data from a foreign jurisdiction to the United States, it is essential to consider the laws of the jurisdiction where the data is located that might prohibit or limit the ability to conduct discovery in the same manner a party might in the United States.

Of particular concern are the requirements that exist in the European Union, including the EU Data Directive and the blocking statutes that exist in certain countries.  Interestingly, the EU does not have a well-recognized concept of litigants’ rights to extensive documents and data in discovery the way that we see occurring in the United States.

With regard to the EU Directive, it imposes limits (as implemented by local law) on the processing and export of information in order to limit unnecessary storage and dissemination of personal information, including information relating to customers and employees.  The concept of personal information in the EU is broader than in the United States, and virtually any information about customers or employees will require analysis of potential privacy implications.

Further, when referring to “processing”, the Directive does not just mean the technical processing by an eDiscovery methodology that we are familiar with in the United States, but processing can be seen as preserving information longer than it otherwise would have been preserved in the normal course of business, such that even the dissemination of a legal hold can require analysis of obligations under the Directive.

Beyond the Data Directive, certain countries like France and Switzerland have implemented so-called blocking statues that can prohibit the conduct of discovery in those countries for foreign legal matters unless certain express conditions are met.  These statutes can carry with them criminal penalties of monetary fines and even imprisonment.

Amber Scorah:  Do these laws create a conflict with discovery obligations in the United States?

Jonathan Wilan:  Companies often find themselves trapped between the obligations imposed under United States civil discovery rules to preserve and produce documents in their possession, custody, and control and the foreign legal obligations reflected in data privacy laws and blocking statutes.  Parties in this position will often cite the foreign laws in arguing to US courts that the discovery should be blocked or that the requesting party should follow formal mechanisms for seeking international discovery such as the Hague Convention.

With a few exceptions, courts in the United States have generally been unsympathetic to these arguments, ordering parties to produce documents despite the obstacle of the foreign law, putting these companies in quite an unfavorable predicament.

Amber Scorah:  What do you recommend companies faced with such a conflict do?

Jonathan Wilan:  Each case and situation is different, but we have found a few steps that can help reduce the risk on both sides of the Atlantic.  First, it is important to identify cross-border discovery conflicts early on.  Developing a clear record that this issue was raised with adversaries early in the matter will assist later on in arguing before the court that the concerns are legitimate and not simply being raised to block otherwise valid discovery late in the game.

Second, courts are likely to be more sympathetic to arguments limiting such foreign discovery where the documents overseas are duplicative of documents available in the United States or are tangential to the key issues in the matter.

Third, where collection and production from the EU is required, specific protocols should be developed to reduce data privacy concerns.  These should include consideration of in-country review of documents prior to export to limit the amount of documents to be exported to only the most relevant, using keywords and other tools to pre-cull potentially personal information, developing special redaction protocols for private EU information, and obtaining a protective order in the United States court specifically designed to address EU privacy concerns.  Custodian consent to the use of their documents for the instant litigation should be sought prior to any data collection.

Fourth, obtain local data privacy counsel to review the protocols and help assess the risks.  Local counsel can help interact with and address concerns of local data commissioners.

For more information visit www.ediscoveryoilandgas.com, or email amber.scorah@iqpc.com.

eDiscoveryJournal Contributor:  Amber Scorah, Legal IQ

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