E-Discovery: What Increased Data Protection Means for the Global Economy

As our economy and companies become more digital and global, digital information outside the U.S becomes increasingly relevant to resolving civil disputes within our nation.

Digital information will be governed by a set of laws and values many U.S. companies and their lawyers are not familiar with, because the U.S. trades more heavily with nations outside the EU. While most industrialized (e.g., Canada, the United Kingdom and Australia) and newly industrializing (e.g., Singapore and South Africa) nations have developed laws compelling the transfer of relevant electronically stored information (ESI) in civil disputes, none have laws as liberal and far reaching as U.S. civil discovery procedures.

Many nations also impose restrictions on when ESI can be gathered, processed, used and transmitted beyond borders. Indeed, "In many non-U.S. jurisdictions, including the European Union member states, some Asian nations and a few Latin American nations, data privacy is viewed as a fundamental right and ‘personal data’ is afforded greater protections than we are accustomed in the U.S." (Gibson Dunn, "E-Discovery Basics: Cross-Border E-Discovery,” Vol. 1, No. 11). In addition, certain countries have privacy laws designed to protect information about their state-run companies (e.g., China) or even the identity of their banking clients (e.g., Switzerland).

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E-Discovery World Wars: The Privacy Menace

Descriptions of the art of litigation are ingrained in ancient history, from Greek scrolls yellowed with age to stone hieroglyphs engraved into the pyramid walls of the Egyptians. But these early insular legal systems did not have to deal with what is becoming one of the more daunting aspects of e-discovery: international boundaries. Today, the overseas offices of many United States corporations have been dragged into the painstaking, and often painful, process of e-discovery. Many more corporations, based entirely in foreign countries, have found themselves subject to e-discovery requests from the United States as well.

When requesting e-discovery internationally, foreign information privacy laws must be respected. The dilemma is that foreign countries have placed restrictions on the international transmission of data that can present high, sometimes insurmountable, barriers to United States e-discovery.  

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