This article originally appeared in the February 2012 International Committee Newsletter.
Of all issues in modern litigation, discovery of electronically stored information (ESI) remains one of momentous and ever-growing significance. Collection, processing and production of ESI can be time-consuming, and its cost crushing. It is no surprise, then, that the scope of e-discovery is often a central point of contention between parties. But those challenges grow exponentially when international entities are involved. It is then that parties and American courts must contend not only with liberal American discovery rules but also with data privacy laws like those implemented in the European Union. In view of these unique challenges, the Sedona Conference—an organization ?dedicated to the advancement of law and policy in the areas of antitrust law, complex litigation and intellectual property rights?1—has proposed a framework to help American courts and their multinational litigants successfully navigate these often conflicting obligations.
This article proceeds in three parts. First, we offer a brief overview of EU data protection laws and how they canconflict with U.S. discovery rules. Second, we briefly survey how U.S. courts have applied data privacy laws Finally, we provide a glimpse of the Sedona Conference’s new, innovative suggestions for the complexities of cross-order discovery—the International Principles.2 Published in December 2011, the International Principles advocate cooperation between parties not only to avoid any potential conflicts but also to resolve them when they arise and propose a number of specific suggestions for cross-border discovery.
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