The Global Data Split: An International View of Discovery


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Cross-border discovery disputes can create painful headaches, and must be approached in an educated and diligent manner with an eye toward global discovery/disclosure rules and developments, disclosure versus data privacy, and cutting-edge case law.

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The Global Data Split: An International View of Discovery

  1. 1. The Global Data Split: An International View of Discovery
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  3. 3. Discussion Overview Global Discovery/Disclosure Rules & Developments » US » UK » Canada » Australia » Asia Global E-discovery Hot Topics 3
  4. 4. U.S. & England/Wales: General Approaches U.S. (E-discovery) England/Wales (E-disclosure) 2006 Amendments to FRCP & 2008 Amendments to FRE 502 2005 Amendments to CPR Practice Direction 31B on the Disclosure of Electronic Documents Broad fact-finding & discovery: information that is relevant or may lead to relevant evidence Narrower disclosure: documents on which a party relies and that support or adversely affect either its case or another party’s case Document requests, depositions & interrogatories (less voluntary approach) Witness & Disclosure Statements (Voluntary, standard disclosure verifying extent of searches) Duty to produce properly requested information Duty to conduct a reasonable* search and produce a disclosure statement; doesn’t apply to every case 4
  5. 5. U.S. & England/Wales: Proportionality U.S. (E-discovery) England/Wales (E-disclosure) Courts must limit discovery if “the burden or expense of the proposed discovery outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(2)(C). “Parties should bear in mind that the overriding objective includes dealing with the case in ways which are proportionate.” Practice Direction 31B(20). 2011 opinion: • Wood v. Capital One Servs. LLC (N.D.N.Y. 2011) • Denying production of 1,750,000 potentially relevant documents projected to cost over $5 million to process, review and produce Practice Direction 31B: Addresses the reasonableness of a search. Some factors articulated in Direction 31B(21): • The accessibility of Electronic Documents • Location of relevant Electronic Documents • Likelihood of locating relevant data • Cost of recovering any Electronic Documents 5
  6. 6. U.S. & England/Wales: Duty to Preserve U.S. (E-discovery) England/Wales (E-disclosure) Triggers when litigation is reasonably anticipated Triggers when litigation has commenced—potentially earlier? Litigation hold is required at anticipation of litigation •Document retention and destruction policies & schedules are widely used Attorneys “must notify their clients of the need to preserve disclosable documents,” including those “which would otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business” 6
  7. 7. U.S. & England/Wales: Sanctions 7 U.S. (E-discovery) England/Wales (E-disclosure) Volumes of judicial opinions Case law still developing • Top topic in case law reviewed in 2011 (42% of cases) • Types of sanctions: “Further discovery, cost-shifting, fines, special jury instructions, preclusion, and the entry of default judgment or dismissal” –Pension Comm. • Jurisdictions use differing culpability thresholds • Rybak & Ors v. Langbar Int’l Ltd. [2010] EWHC 2015 (striking out claim for deleting ESI)
  8. 8. Global E-discovery: Additional Guidance 8 Country Law Summary Canada Ontario Rules of Civil Procedure • Directly calls counsel to implement discovery plan that incorporates how to handle production of ESI • Makes an explicit call for cooperation and meet and confer • Requires counsel to confer with the Sedona Canada Principles Australia Practice Note CM 6 • Courts may order electronic format production where “the use of technology… will help facilitate the quick, inexpensive and efficient resolution of the matter” • Pre-discovery and pre-trial checklists; places an expectation on counsel that they have considered the issues in the list, and are in a position to inform the court on how they will be addressed
  9. 9. Global E-discovery: Additional Guidance 9 Country Summary and recent developments **In APAC region, e-discovery largely impacts international companies with US-based litigation and antitrust concerns. However, practices in the region are evolving. Hong Kong (Common Law) • Special Administrative Region (SAR) • Uses traditional English discovery law • Hong Kong International Arbitration Center China (Civil Law) • Transferring state secrets out of country is strictly protected Singapore (Common Law) • Have passed an “opt-in” e-discovery system, but seldom used in litigation • No dedicated data protection or privacy legislation, though some is currently being discussed • Singapore International Arbitration Centre South Korea (Civil Law) • Still uncharted waters with regards to e-discovery Japan (Civil Law) • Japan Privacy Act permits the conditional transfer of personal information from a corporate entity to a third party; e-discovery still evolving
  10. 10. Global Ediscovery Hot Topics: Privacy 10 Region Privacy View Key Concerns U.S. Search for truth in litigation generally outweighs individual privacy, with exception of personally identifiable information (PII) Core non-privacy concerns: • Relevancy • Privilege • Work product EU Broad privacy rights are generally valued over disclosure in litigation • Protects “personal data” • Limits the use of this data • Requires informed consent • Prohibits transfer out of country sans sufficient data protection Canada Enacted privacy laws similar to EU that favor personal privacy • Confers rights: know why data is being used • Restrains use of data: duty to get informed consent, duty to collect fairly, lawfully
  11. 11. Irreconcilable Differences? 11  What do U.S. courts do when broad discovery inevitably clashes with foreign privacy law? » U.S. discovery law may impose duty to produce protected data » Companies in countries with strict data privacy regulations may still face e-discovery requests or orders to produce ESI – Generally, location (international or not) is irrelevant to FRCP determination of “possession, custody or control” – Subsidiaries of American corporate groups operating abroad and in possession/control of relevant documents
  12. 12. U.S. Case Law: International Discovery French Ministry of Justice stated discovery not in compliance with the Hague Convention would violate French sovereignty Defendant argued disclosure could result in French criminal sanctions Using 5 factor comity test, U.S. court ordered disclosure of documents from a French bank in relation to a terrorist attack in Israel -Strauss v. Credit Lyonnais, S.A., 249 F.R.D. 429 (E.D.N.Y. 2008). United States District Court, E.D. New York. Moses STRAUSS, et al., Plaintiffs, v. CREDIT LYONNAIS, S.A., Defendant. Nos. 06-CV-702 (CPS)(KAM), 07-CV-914 (CPS)(KAM). March 10, 2008 12
  13. 13. Global E-discovery: Additional Guidance EU: Article 29 Data Protection Working Party “Working Document 1/2009 on pre-trial discovery for cross- border civil litigation”  Guides companies subject to EU law regarding requests to transfer personal data to other jurisdictions for use in civil litigation » Processing of personal data must be legitimate and satisfy Articles 7 & 26 of the Data Protection Directive » Obligation imposed by foreign legal statute or regulation does not qualify as a legal obligation for purpose of substantiating e-discovery request 13
  14. 14. Safe Harbor Certification U.S. and EU developed “Safe Harbor Certification” » Allows organizations to certify to U.S. Department of Commerce that they meet the Directive’s adequacy standards Certification requirements include » Notice, choice, access » Onward transfer to third parties » Security, data integrity & enforcement 14
  15. 15. Transoceanic Transfer Tips: Technology Multiple jurisdictions now encourage or require parties to discuss proportionality, use technology and cooperate with opposing parties to » Ensure that only data strictly necessary for legal proceedings is transferred out of Europe » Locate, reduce and review relevant evidence defensibly and efficiently » Reduce cost and justify efforts » Ensure the scope of the search is proportionate to the case at hand using technology 15