Boehning and Toal: Confidentiality Order Sufficiently Protects EU Data in U.S. Discovery

Extract from H. Christopher Boehning and Daniel J. Toal’s article “Confidentiality Order Sufficiently Protects EU Data in U.S. Discovery”

In 1987, the U.S. Supreme Court addressed a dispute highlighting the tension between the broad discovery allowable in U.S. civil litigation and the fundamental protection of personal data abroad and adopted a five factor comity analysis to balance these competing needs. U.S. courts applying this test have generally found the balance tilted in favor of disclosure of discovery materials.

The 33 years since, however, have brought significant change both to U.S. discovery and to data privacy. Discovery is no longer boxes from office filing cabinets; it is terabytes of electronic materials that can contain both business and personal information. And, data privacy is not a treaty of the Council of Europe; it is binding, long-arm laws around the world, led by the European Union’s General Data Protection Regulation (GDPR) and followed by similar laws worldwide—including in U.S. states.

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