Mind the Gap: U.S. Discovery Demands versus EU Data Protection


The rising tide of globalization has meant that, more frequently than ever before, multinational corporations must navigate between U.S. litigation discovery demands seeking the production of documents and information located in the European Union and EU data protection requirements. The authors examine the arguments available in U.S. litigation for resolving conflicting laws, and suggest an approach they say lawyers and business people can take to try to navigate through the rocky shoals of U.S. discovery obligations (the proverbial ‘‘rock’’) and EU data protection authorities (the proverbial ‘‘hard place’’). Notwithstanding conflicting obligations, there are means today to navigate this legal morass, according to the authors, who suggest a way forward.

Complying with U.S. discovery demands can involve enormous effort and expense, even in the best of circumstances. But the discovery process can become even more difficult when compliance with U.S. discovery demands raises potentially conflicting legal obligations in non-U.S. jurisdictions. One way in which these conflicting demands might arise is when EU data protection laws prohibit the discovery of the requested information. On the one hand, U.S. courts can seek to compel litigants and third-party witnesses to produce documents and other information, and impose serious sanctions for failure to do so.

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