This document summarizes a panel discussion on the legal and practical challenges of cross-border e-discovery disputes. It outlines differences between American-style discovery rules and foreign frameworks like the EU Data Protection Directive. The Hague Convention provides an alternative but courts often disregard it. Blocking statutes criminalize sharing information with foreign authorities. Practical considerations include assessing safety, conducting interviews abroad, choosing data processing tools, reviewing foreign documents, and controlling costs. Organizations must coordinate legal, IT, and compliance functions on data policies, records management, and audits.

1. The Corporate Reality ofCross-Border Disputes in the Global Business Market Legal Tech New York February 1, 2011

2. Panel Introductions Brendan M. Schulman, Esq. E-Discovery Counsel, Kramer Levin Naftalis & Frankel LLP David Bryant Isbell Senior Litigation Specialist, Baker & McKenzie LLP Cynthia B. Bateman Director, Forensic Technology Services, KPMG LLP Heidi Maher, Esq. Principal - Compliance & eDiscovery Practice, EMC Corporation

3. Agenda Legal Background – US/Non-US Differentiators Practical Considerations and Process Recommendations Organizational Policy and Compliance

4. Legal Background & US/Non-US Differentiators

5. American-Style Discovery F.R.C.P. 26(b)(1) “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense -- including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity of persons who know of any discoverable matter”

6. American-Style Discovery F.R.C.P. 26(b)(1) Discovery requests need only be “reasonably calculated to lead to the discovery of admissible evidence.”

7. American-Style Discovery Discovery rules enable the parties "to obtain the fullest possible knowledgeof the issues and facts before trial.“Hickman v. Taylor, 329 U.S. 495, 501 (1947) "Exceptions to the demand for every man's evidence are not lightly created nor expansively construed, for they are in derogation of the search for the truth." U.S. v. Nixon, 418 U.S. 683, 709 (1974)

8. American-Style Discovery

9. Conflict with Foreign Framework “[T]he transfer to a third country of personal data which are undergoing processing or are intended for processing after transfer may take place only if . . . the third country in question ensures an adequate level of protection” EU Data Protection Directive Article 25

10. Conflict with Foreign Framework “There is a tension between the disclosure obligations under US litigation or regulatory rules and the application of the data protection requirements of the EU. . . . an obligation imposed by a foreign statute or regulation may not qualify as a legal obligation by virtue of which data processing in the EU would be made legitimate.” E.U. Article 29 Working Party Report 158

11. Hague Convention Hague Convention 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 purpose of obtaining pre-trial discovery of documents as known in Common Law countries.”

12. Aerospatiale case Aerospatiale case Societe Nationale Industrielle Aerospatiale v. US District Court for the Southern District of Iowa, 482 U.S. 522 (1987) Hague Convention is not exclusive means for US litigants to obtain evidence abroad District Court possesses jurisdiction "to order a foreign national party before it to produce evidence physically located within a signatory nation" Hague Convention is not the first resort because it is "unduly time consuming and expensive, as well as less certain to produce needed evidence than direct use of the Federal Rules."

13. Aerospatiale case - Application Aerospatiale case - Application “Many courts are simply discarding the [Hague Convention] as an unnecessary hassle” and do not “exercise the ‘special vigilance’ to protect foreign litigants’ that the Supreme Court anticipated.” In re Automotive Refinishing Paint Antitrust Litigation, 358 F.3d 288 (3d Cir. 2004)

14. Blocking Statutes French blocking statute: Criminal penalties for “communicating ... to foreign public authorities, economic, commercial, industrial, financial, or technical documents or information, the communication of which [would] infringe upon the sovereignty, security or essential economic interests of France or upon the public order.”

15. Blocking Statutes U.S. Courts generally do not heed Minpeco, S.A. v. Conticommodity Servs., Inc., 116 F.R.D. 517 (S.D.N.Y. 1987) In re Vivendi Universal, S.A. Secs. Litig., No. 02 Civ. 5571 (RJH), 2006 WL 3378115 (S.D.N.Y. 2006);

16. Getting into trouble Strauss v. Credit Lyonnais S.A., 242 F.R.D. 199, 221 (E.D.N.Y. 2007) French Corporation is ordered to produce documents located in France.

18. Getting into trouble Lyondell-Citgo Refining, LP v. Petroleos de Venezuela, S.A, 2005 WL 1026461 (S.D.N.Y. 2005). Adverse-inference instruction.

19. eDiscovery Process - Practical Considerations

21. Assessing the need for investigative services to evaluate safety concerns and information and fact gathering.

23. Consulting with client on collections. When do you use client resources versus a third party collections vendor?

24. Understanding and addressing potential DPA issues and assessing the need for Safe Harbor.

25. Preparing for and conducting document custodial interviews, staffing needs and key questions for custodians.

26. Are forensic accounting services required and factors to consider for collection?

27. Importance of maintaining chain of custody and documentation including collection logs

29. Selection of an e-Discovery Platform

30. Safe Harbor Certification

31. Foreign language review and Unicode compliance

32. Data encryption concerns

33. Global De-Duplication vs Custodial De-De-Duplication

34. Time zone processing

36. Considering DPA concerns when staffing a document review team.

37. Putting controls around your document review and QC.

38. Harnessing Technology – when and how to implement advanced analytical tools in the document review process

39. Production Concerns and Organization – Producing to multiple regulatory agencies.

40. Concerns over cost control and coping with the high cost of e-discovery and review.

43. Personal Data Policies and Procedures

44. Records Management and Information Governance

45. Third-Party Relationships