Cross Border Ediscovery vs. EU Data Protection at LegalTech West Coast

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Power Point Slide Deck for a CLE presentation given by Monique Altheim, Esq. at LegalTech West Coast 2012.

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  • On slide 8/23, read 'article 8 of the EU Charter of Fundamental Rights'. On slides 15/23 to 19/23, read 'Directive 95/46/EC' Sorry for the typos.
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  • On slide 8/23, read 'article 8 of the EU Charter of Fundamental Rights'.
    On slides 15/23 to 19/23, read 'Directive 95/46/EC'
    Sorry for the typos.
       Reply 
    Are you sure you want to  Yes  No
    Your message goes here
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  • US is signatory to this treaty
  • Cross Border Ediscovery vs. EU Data Protection at LegalTech West Coast

    1. 1. US Ediscovery in Civil Litigation v. EU Data Protection Laws Clash of The Titans 1
    2. 2. Monique Altheim, Esq.,CIPP Owner and Managing PartnerThe Law Office of Monique Altheim New York, USA monique@altheimlaw.com 718-462-2138 2
    3. 3. “The Position of the Americans is…quite exceptional.” Alexis de Tocqueville, Democracy in America,1840, part 2, p.36. • The US has the broadest pre-trial civil discovery procedure in the world. • Rule 26 (b) FRCP: "parties may obtain discovery regarding any matter, not privileged, that is relevant to any partys claim or defense." 3
    4. 4. “The Position of the Americans is…quite exceptional.” Alexis de Tocqueville, Democracy in America,1840, part 2, p.36.• Other Common Law Jurisdictions:Australia, Canada, United Kingdom, India, Singapore, HongKong and other former British Colonies.Very restricted pre-trial discovery procedures. 4
    5. 5. “The Position of the Americans is…quite exceptional.” Alexis de Tocqueville, Democracy in America ,1840, part 2, p36.•Civil Code Countries: Europe, LatinAmerica, China, most former ContinentalEuropean colonies in Africa & Asia.“Pre-trial discovery? Huh?” 5
    6. 6. “The Position of the Americans is…quite exceptional.” Alexis de Tocqueville, Democracy in America,1840, part 2, p.36• TAKEWAY: When dealing with American affiliatesabroad, don’t assume knowledge of basic US pre-trialdiscovery obligations. 6
    7. 7. Legal Issues in Cross-Border Civil Ediscovery •Privacy/Data Protection Laws •Blocking Statutes •Bank Secrecy Laws •Labor Laws •Criminal Laws 7
    8. 8. US vs. EU: Clash of The TitansUS ediscovery obligations vs. EU Data Protection Obligations US: Broadest pre-trial civil ediscovery system on the planet. EU: Strictest Data Protection framework on the planet. Data Protection is a human right. (article 7 of the EU Charter of Fundamental Rights). 8
    9. 9. US vs. EU: Clash of The Titans What is the US legal basis for discovery abroad?•Rule 34 FRCPor• the Hague Convention on the Taking of EvidenceAbroad in Civil or Commercial Matters 9
    10. 10. US vs. EU: Clash of The Titans What is the US legal basis for discovery abroad? Rule 34 FRCP: (a) In General. A party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding partys possession, custody, or control:Mt. HawlwyIns.Co.v. Felman Prod., Inc. 269 F.R.D. 609, 610 (S.D.W.Va2010) 10
    11. 11. US vs. EU: Clash of The Titans What is the US legal basis for discovery abroad?The Hague Convention on the Taking of Evidence Abroad inCivil or Commercial Matters:“letters of request” or “letters rogatory” petitions from the courtof one country to the designated central authority of anotherrequesting assistance from that authority in obtaining relevantinformation located within its borders. 11
    12. 12. the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: • not all EU Member States are parties to the Hague Convention. (e.g. Belgium) • reservations under Article 23:“a contracting state may at the time of signature, ratification or accession declare that it will not execute letters of request issued for the purposes of obtaining pre-trial discovery of documents. Many signatory States, including France, Germany, Spain and the Netherlands have filed such reservations under Article 23. • unduly time consuming; can take more than a year. • discovery request must be very specific. Broad requests are denied. 12
    13. 13. US vs. EU: Clash of The Titans What is the US legal basis for discovery abroad?SociétéNationaleIndustrielleAérospatialev United States DistrictCourt, 482 U.S. 522, 544 n.28 (1987)FRCP prevails!However, “International Comity” demands following balancing test: 1)the importance to the litigation of the information requested; 2) the degreeof specificity of request; (3) whether the information originated in the UnitedStates; (4) the availability of alternative means of securing the information; (5)the extent to which non-compliance would undermine the interests of theUnited States or compliance with the request would undermine the interests ofa foreign sovereign nation. 13
    14. 14. US vs. EU: Clash of The Titans What is the EU legal basis for discovery in the EU?Article 29 Working Party Working Document1/2009 on pre-trial discovery for cross border civillitigation: WP 158• Recommends the Hague Convention, but inabsence thereof, sets forth Guidelines. 14
    15. 15. WP 158 GuidelinesAll Data Protection Principles, contained in the EuropeanDirective 46/95/EC (The Directive) must be complied with:•Proportionality Principle•Transparency Principle•Data Subject’s Rights such as Access.•Data Security•External Service Providers•Legal Basis for Processing•Legal Basis for Transfer to Third Countries 15
    16. 16. Directive 46/95/EC• Directive acts as a floor: Member States can add but notsubtract.• Applies to all 27 Member States of the EU plusIceland, Liechtenstein and Norway. (The European EconomicArea or EEA).• Has been implemented in the national laws of the EEA Stateswith many variations.• Is currently under review for being too outdated. 16
    17. 17. Directive 46/95/EC Legal Basis for Processing Personal Data for Ediscovery Article 7 Member States shall provide that personal data may be processed only if:(a) the data subject has unambiguously given his consent; or(f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1 (1). 17
    18. 18. Directive 46/95/EC Legal Basis for Processing SENSITIVE Personal Data for Ediscovery Article 8• a) the data subject has given his explicit consent to the processing of thosedata, except where the laws of the Member State provide that the prohibitionreferred to in paragraph 1 may not be lifted by the data subjects giving hisconsent; or•e) the processing … is necessary for the establishment, exercise or defence oflegal claims. 18
    19. 19. Directive 46/95/EC Legal Basis for TRANSFER of Personal Data to the US Article 25 and 26• Adequate Country: US is not an “adequate Country”• Unambiguous Consent of Data subject. Consent must be freelygiven.• Organizations that have been “Safe Harbor” certified• Organizations that have Binding Corporate Rules (BCRs) in place• The transfer occurs under “Standard Contract Clauses” agreements.• Caveat: None of the above covers onward transfer to thirdparties, such as opposing parties and the courts, or data review centersin India. 19
    20. 20. Latest Developments:• The European Commission’s Proposal for a REGULATION of the EuropeanParliament and of the Council on the protection of individuals with regard to theprocessing of personal data and on the free movement of such data (General DataProtection Regulation) (2012)•The Sedona Conference® International Principles on Discovery, Disclosure &Data Protection (2012)•American Bar Association Resolution 103 (2012) 20
    21. 21. Practical Takeaways•Know where your data are: Develop a data map of the types and location ofESI under your control. Include the Cloud and mobile devices.•Practice sound data governance. Don’t hoard unnecessary data.•Obtain the advice of local experts regarding data privacy and otherrestrictions.•Prepare the necessary notice and consent forms.•Develop a strategy for local legal hold, collection and review.•Process as many data as possible locally. Minimize the amount of personaldata to be transferred to the US through the use of narrow searchterms, predictive coding, anonymization, pseudonimyzation and redaction ofpersonal information.•Secure the data adequately.•Involve the US courts early on in the process, e.g. at the meet and confermeeting.•Educate the US courts about EU Data Protection laws and restrictions. Obtainaffidavits from legal experts and government authorities.•Provide the US courts with enforcement examples by DPAs (Data ProtectionAuthorities) for non-compliance to show real possibility of harm.•Request protective orders from US Courts to guarantee data confidentiality.•Document everything early and often to demonstrate good faith andreasonableness to both Data Protection Authorities and Federal Judges. 21
    22. 22. SourcesThe Hague CONVENTION ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIALMATTERS (1970)http://www.hcch.net/index_en.php?act=conventions.text&cid=82 FEDERAL RULES OF CIVIL PROCEDURE (2006)http://www.law.cornell.edu/rules/frcp/SocieteNationalev. District Court - 482 U.S. 522 (1987)http://www.law.cornell.edu/supremecourt/text/482/522 DIRECTIVE 95/46/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL (1995) http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31995L0046:en:HTMLThe EU Charter of Fundamental Rightshttp://www.europarl.europa.eu/charter/pdf/text_en.pdfArticle 29 Working Party Working Document 1/2009 on pre-trial discovery for cross border civil litigationhttp://ec.europa.eu/justice/policies/privacy/docs/wpdocs/2009/wp158The Sedona Conference® International Principles on Discovery, Disclosure & Data Protection (2011)http://www.thesedonaconference.org/dltForm?did=IntlPrinciples2011.pdfThe European Commission’s Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT ANDOF THE COUNCIL on the protection of individuals with regard to the processing of personal data and onthe free movement of such data (General Data Protection Regulation)http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdfAmerican Bar Association Resolution 103http://www.abanow.org/wordpress/wp-content/files_flutter/13285610062012mm103.pdf 22
    23. 23. Thank You! Questions?monique@altheimlaw.com 718-462-2138 23

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