Extract from Cassandre Coyer’s article “Could the FRCP Require Data Privacy, Cybersecurity Considerations in Proportionality Tests?”
With more than a hundred countries around the world with their own version of a data privacy law, the U.S. approach to discovery—one that has historically prioritized disclosure over data protection—may soon find itself the odd one out.
Though these tensions already manifest during cross-border discovery, the current Federal Rules of Civil Procedure don’t account for the impact of discovery proceedings on the data privacy rights of the parties involved—directly or indirectly—in litigation.
But that could soon change.
In a session last Tuesday during Legalweek 2024 titled “Forthcoming Proposed Changes to the Federal Rules of Civil Procedure: A Strategic Update,” panelists highlighted proposed efforts to amend the rules to account for data protection, as well as the long road ahead before any of these changes may actually take place.
The nudge to the Advisory Committee on Civil Rules, which is the first to evaluate suggestions and proposals for rule amendments, came from Lawyers for Civil Justice, an advocacy organization with members from companies, law firms and defense bar organizations. Last September, the group submitted its rules suggestions to amend the FRCP to address data security and privacy.
