The Wide World of E-Discovery

July 24, 2010

Authored By: Francis M. Giantomasi

Citation: European Commission Article 29 Data Protection Working Party, "Working Document 1/2009 on Pre-Trial Discovery for Cross-Border Civil Litigation.”

Employee/Employer Implicated: Multinational businesses with affiliates and/or subsidiaries in Europe, Data controllers

e-Lesson Learned: Recently adopted guidelines clarify the result that occurs when an EU country’s e-discovery rules are at odds with American courts’ requirements.

Twitter This: The European Union has established protocol for e-discovery requests when civil litigation spans the globe. --> http://ellblog.com/?p=2103

E-discovery is a constantly developing topic in the legal world, and the word, “world,” should be taken literally. Across the globe, different nations and their legal system are formulating new rules to tackle new discovery issues that can arise almost as quickly as new technology and means of communication can develop. The only problem with this, however, is that different nations are addressing their e-discovery issues with different solutions. This problem usually rears its ugly head when one of the parties in a lawsuit is a multinational company. What is a British company supposed to do when it’s sued in an American because of a foul-up by its French Subsidiary? Do they supply all of the e-discovery materials required by American courts? What if e-discovery that the American court requires no longer exists because it never needed to be stored in the first place by French or British?

The European Commission, the executive arm of the European Union (“EU”), responsible for proposing legislation and implementing decisions in addition to running the EU on a day-to-day basis and upholding EU treaties, recently took steps toward untangling this e-discovery web of confusion and contradiction. The European Commission had previously established the working party, an independent advisory board charged with handling issues relating to data protection and privacy in the EU.

The working party recently addressed the issue of transborder e-discovery relating to data held in Europe that was required to be produced as a result of legal proceedings occurring in the United States. It recognized that a certain tension had mounted as a result of disclosure obligations under American legal rules differing with data protection requirements in the EU, the working party also recognized that this was particularly relevant to European affiliates of multinational companies that were getting caught while trying to balance their obligations as a result of American e-discovery demands in connection to litigation and the various data protection and privacy laws governing the transfer of personal information that also varied among the different countries within the EU. The working party saw that there was a need to reconcile the U.S. litigation requirements and EU data protection provisions and as a result, recommended a set of guidelines to be followed by EU data controllers. These guidelines were eventually adopted in February 2009. Among the guidelines adopted were a number of provisions applicable to lawsuit parties, businesses, lawyers, courts, & governments.

One conflict addressed by the working party that is likely the most applicable to e-discovery problems is what is to be done when a foreign company has to concern itself with American document retention rules that may conflict with the rules in the country where the company operates. Due to the fact that different countries each have different time limits for potential litigants to bring a claim, it was not practical for the working party to establish a particular uniform period of time for data to be stored. Thus, the guidelines provide as a solution that data controllers in the EU should have a clear policy on data storage, management, and retention. So as long as the policy comports with local applicable guidelines and the policy is adhered to, the data controller will not be found to be at fault with US law because US rules of civil procedure merely require that existing information be disclosed to the adverse party. An exception to this, however, is that if there is data relevant to a specific, imminent litigation process, it should be stored even such storage would not otherwise be required by the data storage policy in order to prevent spoliation of evidence. The guidelines also address the process to be followed when an American court, a “litigation hold of pre-emptive requirement that information be retained. In such scenarios, the data storage policy and/or and data destruction policy for documents that may be relevant to the legal claim is to be suspended.

This is just one of many problems addressed by the working party. Their recently adopted guidelines also resolve globally conflicting laws relating to e-discovery issues that include, but are not limited to disclosure of sensitive personal data, consent, proportionality, transparency, rights of access and erasure, data security, and transferring data to third parties. As a result, any company that does business in the U.S. as well as the EU would be best served by familiarizing itself with the working party’s recently adopted guidelines.

Frank received his B.a. from Wesleyan University. In addition to being an award winning gardener, he is a third-year law student at Seton Hall University School of Law and can be contacted at [email protected]. After graduating, he will clerk for a New Jersey Superior Court judge.

Article posted on July 24, 2010 at 9:11 AM |