eDiscovery and the GDPR: Ready or Not, Here it Comes: eDiscovery Best Practices

by CloudNine
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Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars, including our webinar last Friday on E-Discovery Day (Murphy’s eDiscovery Law – How to Keep What Could Go Wrong From Going Wrong), which was great.  If you missed it, you can check out the replay here.  Now, Tom has written a terrific informational overview on Europe’s General Data Protection Regulation (GDPR) titled eDiscovery and the GDPR: Ready or Not, Here it Comes.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Here’s the first part.

Part One: What is the GDPR? A Primer for Understanding

Europe’s General Data Protection Regulation (GDPR) is set to take effect in less than 200 days.  It is important to understand the changes this new set of regulations will impose, but it is also important to understand that even if you don’t have a physical business presence in Europe, the GDPR may apply to you. Any organization that retains personal information of any EU individuals must act to comply with the GDPR.

HOW DID WE GET HERE?

To put the provisions of the GDPR in context, we should first point out the differing concepts of privacy between the United States and Europe.  The US tends to place a high emphasis on the concept of free speech more so than privacy and this emphasis is carried over into the litigation arena.

In the US, we view privacy rights as constitutional in nature, but there is actually no right to privacy enumerated in either the body of the Constitution itself or the Bill of Rights. In fact, it wasn’t until 1965 that the US Supreme Court set out an individual right to privacy when it overturned a state law on contraceptives in Griswold v. Connecticut.

In Europe however, privacy is considered a fundamental right. All the member states of the European Union (EU) are also signatories of the European Convention on Human Rights (ECHR). And Article 8 of the ECHR provides a right to respect for one’s “private and family life, his home and his correspondence,” subject to certain restrictions. The European Court of Human Rights has given this article a very broad interpretation in its jurisprudence.

In 1980, in an effort to create a comprehensive data protection system throughout Europe, the Organization for Economic Cooperation and Development (OECD) issued its “Recommendations of the Council Concerning Guidelines Governing the Protection of Privacy and Trans-Border Flows of Personal Data.”

The seven principles governing the OECD’s recommendations for protection of personal data were:

  1. Notice: data subjects should be given notice when their data is being collected;
  2. Purpose: data should only be used for the purpose stated and not for any other purposes;
  3. Consent: data should not be disclosed without the data subject’s consent;
  4. Security: collected data should be kept secure from any potential abuses;
  5. Disclosure: data subjects should be informed as to who is collecting their data;
  6. Access: data subjects should be allowed to access their data and make corrections to any inaccurate data; and
  7. Accountability: data subjects should have a method available to them to hold data collectors accountable for not following the above principles.

The OECD Guidelines, however, were non-binding, and data privacy laws still varied widely across Europe.  In 1981 the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data was negotiated within the Council of Europe. This convention obliges the signatories to enact legislation concerning the automatic processing of personal data, which many duly did.

But the European Commission realized that diverging data protection legislation amongst EU member states impeded the free flow of data within the EU and since privacy rights were declared in article 8 of the EU Charter of Fundamental Rights, acted to propose a Data Protection Directive. All seven of the OECD principles were incorporated into the EU Data Protection Directive (officially the European Union Directive 95/46/EC on the protection of individuals regarding the processing of personal data and on the free movement of such data) which was adopted in 1995.

However, European directives are guidelines which propose certain results but leave each Member State free to decide how to transpose them into national laws The EU currently has 28 member states, and a total of 31 nations comprise the European Economic Area (EEA). Over the years, they have made different laws that sometimes contradict each other.

A regulation, on the other hand, is a legal act of the European Union that becomes immediately enforceable as law in all member states simultaneously. Since the 1995 Directive was only able to provide overall guidance in this area, the GDPR is designed to effectively harmonize European data protection laws. It was adopted in April 2016, and will officially supersede the Data Protection Directive and be enforceable starting on May 25, 2018.

The United States, however, while endorsing the OECD’s recommendations, did nothing to implement them within the United States. Part of the issues is the diversity of laws in our federalist structure of government. With 50 states, 94 federal judicial districts, including at least one district in each state, the District of Columbia and Puerto Rico and additional territorial courts and courts of special jurisdiction such as bankruptcy, having a unified privacy directive similar to the GDPR is problematic here.

IMPACT BEYOND THE EU

First, we should note that the GDPR affects more than merely the EU. The regulation applies not just to the 28 member states of the EU but is also being integrated into the 1992 EEA Agreement and thus applies to the 31 member states of the European Economic Area (EEA), which includes the 28 EU member states plus Iceland, Norway, and Lichtenstein.

Second, as noted above, you do not have to have a physical presence in Europe to be covered by the GDPR. It applies to not only EEA nations, but any organization offering goods or services to European data subjects or organizations controlling, processing, or holding personal data of European nationals, regardless of the organization’s location.

PREPARATION TRAJECTORY

Activities to deal with the upcoming implementation of the GDPR have been slowly building momentum. Groups such as The Sedona Conference and the EDRM have been studying best practice principles for US attorneys but numerous questions remain on how to proceed.

The important point is to be prepared.  The GDPR demands, not requests, data privacy compliance and places strong emphasis on organizations to act more responsibly in their data governance practices. More than ever, you need to identify what privacy-related content you possess, why it’s there, and who has access to it.

Failure to adequately prepare for the changes can have severe ramifications, including much higher fines than under the current regulatory environment. These include penalties of up to 4% of the organization’s global gross revenue for non-compliance, a point we will discuss in more detail in following parts of this overview.

For the remainder of the overview, we will highlight key elements, evaluations, and events in the planned implementation of the GDPR. Key elements to be covered will include:

  • Discuss definitions for common terms used in the GDPR
  • Discuss changes in practice to be made under the GDPR
  • Set out distinctions to be made between obligations for a specific company as opposed to service providers
  • Discuss steps to take to insure compliance with the GDPR

So, what do you think?  Are you ready for the GDPR? Read more about this important event in the following parts of our GDPR series and see how it may impact you and your organization.

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