The Global Data Split: An International View of Discovery

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Discussion Overview

Global Discovery/Disclosure Rules & Developments

» US

» UK

» Canada

» Australia

» Asia

Global E-discovery Hot Topics

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U.S. & England/Wales: General Approaches

U.S. (E-discovery) England/Wales (E-disclosure)

2006 Amendments to FRCP &

2008 Amendments to FRE 502

2005 Amendments to CPR

Practice Direction 31B on the

Disclosure of Electronic Documents

Broad fact-finding & discovery:

information that is relevant or

may lead to relevant evidence

Narrower disclosure: documents

on which a party relies and that

support or adversely affect either its

case or another party’s case

Document requests, depositions

& interrogatories (less voluntary

approach)

Witness & Disclosure Statements

(Voluntary, standard disclosure

verifying extent of searches)

Duty to produce properly

requested information

Duty to conduct a reasonable*

search and produce a disclosure

statement; doesn’t apply to every

case

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U.S. & England/Wales: Proportionality

U.S. (E-discovery) England/Wales (E-disclosure)

Courts must limit discovery if “the

burden or expense of the proposed

discovery outweighs its likely benefit.”

Fed.R.Civ.P. 26(b)(2)(C).

“Parties should bear in mind that the

overriding objective includes dealing

with the case in ways which are

proportionate.” Practice Direction

31B(20).

2011 opinion:

• Wood v. Capital One Servs. LLC

(N.D.N.Y. 2011)

• Denying production of 1,750,000

potentially relevant documents

projected to cost over $5 million to

process, review and produce

Practice Direction 31B: Addresses the

reasonableness of a search. Some

factors articulated in Direction 31B(21):

• The accessibility of Electronic

Documents

• Location of relevant Electronic

Documents

• Likelihood of locating relevant data

• Cost of recovering any Electronic

Documents

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U.S. & England/Wales: Duty to Preserve

U.S. (E-discovery) England/Wales (E-disclosure)

Triggers when litigation is

reasonably anticipated

Triggers when litigation has

commenced—potentially earlier?

Litigation hold is required at

anticipation of litigation

•Document retention and

destruction policies &

schedules are widely used

Attorneys “must notify their

clients of the need to preserve

disclosable documents,” including

those “which would otherwise be

deleted in accordance with a

document retention policy or

otherwise deleted in the ordinary

course of business”

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U.S. & England/Wales: Sanctions

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U.S. (E-discovery) England/Wales (E-disclosure)

Volumes of judicial opinions Case law still developing

• Top topic in case law reviewed

in 2011 (42% of cases)

• Types of sanctions: “Further

discovery, cost-shifting, fines,

special jury instructions,

preclusion, and the entry of

default judgment or dismissal”

–Pension Comm.

• Jurisdictions use differing

culpability thresholds

• Rybak & Ors v. Langbar Int’l Ltd.

[2010] EWHC 2015 (striking out

claim for deleting ESI)

Global E-discovery: Additional Guidance

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Country Law Summary

Canada Ontario Rules of Civil

Procedure

• Directly calls counsel to implement

discovery plan that incorporates how to

handle production of ESI

• Makes an explicit call for cooperation and

meet and confer

• Requires counsel to confer with the

Sedona Canada Principles

Australia Practice Note CM 6 • Courts may order electronic format

production where “the use of technology…

will help facilitate the quick, inexpensive

and efficient resolution of the matter”

• Pre-discovery and pre-trial checklists;

places an expectation on counsel that

they have considered the issues in the list,

and are in a position to inform the court on

how they will be addressed

Global E-discovery: Additional Guidance

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Country Summary and recent developments

**In APAC region, e-discovery largely impacts international companies with US-based

litigation and antitrust concerns. However, practices in the region are evolving.

Hong Kong

(Common Law)

• Special Administrative Region (SAR)

• Uses traditional English discovery law

• Hong Kong International Arbitration Center

China

(Civil Law)

• Transferring state secrets out of country is strictly protected

Singapore

(Common Law)

• Have passed an “opt-in” e-discovery system, but seldom used in

litigation

• No dedicated data protection or privacy legislation, though some is

currently being discussed

• Singapore International Arbitration Centre

South Korea

(Civil Law)

• Still uncharted waters with regards to e-discovery

Japan

(Civil Law)

• Japan Privacy Act permits the conditional transfer of personal

information from a corporate entity to a third party; e-discovery still

evolving

Global Ediscovery Hot Topics: Privacy

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Region Privacy View Key Concerns

U.S. Search for truth in litigation

generally outweighs individual

privacy, with exception of

personally identifiable

information (PII)

Core non-privacy concerns:

• Relevancy

• Privilege

• Work product

EU Broad privacy rights are

generally valued over

disclosure in litigation

• Protects “personal data”

• Limits the use of this data

• Requires informed consent

• Prohibits transfer out of country

sans sufficient data protection

Canada Enacted privacy laws similar to

EU that favor personal privacy

• Confers rights: know why data is

being used

• Restrains use of data: duty to

get informed consent, duty to

collect fairly, lawfully

Irreconcilable Differences?

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What do U.S. courts do when broad discovery inevitably clashes with foreign privacy law?

» U.S. discovery law may impose duty to produce protected data

» Companies in countries with strict data privacy regulations may still face e-discovery requests or orders to produce ESI

– Generally, location (international or not) is irrelevant to FRCP determination of “possession, custody or control”

– Subsidiaries of American corporate groups operating abroad and in possession/control of relevant documents

U.S. Case Law: International Discovery

French Ministry of Justice stated

discovery not in compliance with

the Hague Convention would violate

French sovereignty

Defendant argued disclosure could

result in French criminal sanctions

Using 5 factor comity test, U.S.

court ordered disclosure of

documents from a French bank in

relation to a terrorist attack in Israel -Strauss v. Credit Lyonnais, S.A., 249 F.R.D. 429

(E.D.N.Y. 2008).

United States District Court,

E.D. New York.

Moses STRAUSS, et al., Plaintiffs,

v.

CREDIT LYONNAIS, S.A., Defendant.

Nos. 06-CV-702 (CPS)(KAM), 07-CV-914

(CPS)(KAM).

March 10, 2008

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Global E-discovery: Additional Guidance

EU: Article 29 Data Protection Working Party

“Working Document 1/2009 on pre-trial discovery for cross-border civil litigation”

Guides companies subject to EU law regarding requests to transfer personal data to other jurisdictions for use in civil litigation

» Processing of personal data must be legitimate and satisfy Articles 7 & 26 of the Data Protection Directive

» Obligation imposed by foreign legal statute or regulation does not qualify as a legal obligation for purpose of substantiating e-discovery request

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Safe Harbor Certification

U.S. and EU developed “Safe Harbor Certification”

» Allows organizations to certify to U.S. Department of Commerce that they meet the Directive’s adequacy standards

Certification requirements include

» Notice, choice, access

» Onward transfer to third parties

» Security, data integrity & enforcement

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Transoceanic Transfer Tips: Technology

Multiple jurisdictions now encourage or require parties to discuss proportionality, use technology and cooperate with opposing parties to

» Ensure that only data strictly necessary for legal proceedings is transferred out of Europe

» Locate, reduce and review relevant evidence defensibly and efficiently

» Reduce cost and justify efforts

» Ensure the scope of the search is proportionate to the case at hand using technology

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