Extract from JD Supra’s “Court Refuses to Allow EU Privacy Laws to Shield U.S. Company from Discovery Obligations”
A federal court in Michigan recently became the latest court to weigh in on the extent that litigants could rely on European Union data laws to shield them from producing documents in U.S. litigation. The United States District Court for the Eastern District of Michigan held that despite restrictions on the disclosure of “private” data inherent in E.U. data law, a litigant in the United States was still required to comply with the discovery requirement of the Federal Rules of Civil Procedure even if that necessitated production of documents and data stored on servers in the European Union.
As email communication and ESI have become ubiquitous in world commerce, the United States and the European Union have applied radically different default rules concerning its ownership and placed radically different default rules on their use in litigation. The European Union considers any email or ESI which contains a personal identifier, such as a name, to contain personal data. The EU Data Protection Directive (also known as Directive 95/46/EC) is a regulation adopted by the European Union to protect the privacy and protection of all personal data collected for or about citizens of the EU, especially as it relates to processing, using or exchanging such data.
As it relates to litigation, the EU Data Protection Directive forbids production of any emails or ESI without first identifying the individuals whose “personal data” is implicated and obtaining the consent to its disclosure. In practice, these rules dramatically reduce the exchange of documents between parties in European litigation.
