As world shrinks through electronics, so do number of cases without cross-border hurdles
Whether you’re in New York or London, Sydney or Hong Kong, Paris or Moscow, the likelihood that you will face a dispute involving electronically stored information (ESI) created, stored or altered abroad increases daily.
The United States is unique in its volume of litigation as well as in the breadth and scope of pretrial discovery routinely required in both civil and criminal courts. But when US litigators venture into foreign jurisdictions to obtain ESI, unusual challenges arise. Unlike the US, where discovery policies insist on broad evidence-sharing, most countries have strict privacy laws and blocking statutes that not only conflict with those policies but often trump them.
What must a US party do when it has ESI warehoused, say, in France, and must produce it for US litigation? France has a strict blocking statute that virtually prohibits the collection and production of a wide array of records and information.
Alvin Lindsay, a partner at Hogan Lovells in Miami, Florida, has faced many such difficulties in cases he has handled and acknowledges that solutions are rarely apparent. Lindsay is an expert on navigating international discovery requests, and will be sharing advice on the topic at the ACEDS Annual Conference on March 23-25 in Hollywood, Florida.
He does have some tips, among them:
Tip 1: Know US e-discovery law
When engaged in multinational litigation, Lindsay says, the first thing to do is to understand the rules of the game that apply at home. Three aspects of US e-discovery law are especially important: (1) The technical requirements and expectations required for compliance; (2) the substantive law that applies to the issues in the particular case; and (3) the ethical duties that attorneys owe to the client and the court.
Tip 2: Know the law of the country with the data
When you need to obtain ESI from another country, familiarize yourself with its applicable privacy and information laws. Many European Union (EU) nations have privacy laws and blocking statutes, which prevent the spread or sharing of an individual's personal data. In addition, heightened security concerns may create additional barriers to obtaining ESI, depending on relevant external social, economic, and political events affecting the country.
Tip 3: Educate counsel and US court early on
Lindsay advises you to perform your due diligence on relevant foreign laws and share your knowledge with other members of the e-discovery team. That team may include attorneys, paralegals, litigation support, and information technology (IT) specialists. Also, tell the court about your findings on foreign law as early as possible and on an ongoing basis as your research develops. Keeping the court up-to-date on the laws affecting the ESI you want to obtain is important. At the very least, you may need the US court to officially contact a court in the country where your data is located to make formal requests for it.
Tip 4: Show respect for foreign sovereignty
Although obtaining ESI for matters in litigation is hardly a game, remember to play fair. Acknowledging protocols and procedures established in the country where your data resides not only makes sense, but helps set a precedent for future requests that may arise. Many nations have rules regarding confidentiality agreements and protective orders that require the party obtaining ESI to keep the data confidential.
Tip 5: Determine an applicable “Data Authority”
While researching the laws governing personal data, identify which government agency or ministry handles requests for information. Many countries have data protection authorities and privacy authorities, as well as government agencies that monitor privacy issues.
As the world shrinks through electronics, so does the likelihood that a business will escape cross-border litigation or other disputes that involve the use of ESI to prove pertinent facts. This truism affects not only the lawyers who represent the parties in a dispute but also the litigation support and IT teams that are fast becoming crucial players in litigation and transactions.
“Overcoming Cross-Border Barriers to Get the Data You Need” is one of 17 panels at the ACEDS Annual E-Discovery Conference, March 23-25, 2011, at the Westin Diplomat in Hollywood, Florida. Visit aceds.org/conference for more information.
