When U.S. E-Discovery Meets EU Roadblocks

By Shannon Capone Kirk, Emily Cobb and Michael Robotti
The National Law Journal
December 22, 2008

One of the most challenging aspects of electronic discovery arises when U.S. litigation crosses borders into European Union countries with strong privacy laws. Ten years ago, these challenges seemed nonexistent; today, litigators face increasing roadblocks to e-discovery based on foreign privacy laws.

Are these roadblocks real or imaginary?

All European Union privacy laws derive from EU Directive 95/46/EC, adopted by the European Parliament in October 1995. The directive and the national laws implementing it shield “personal data” from disclosure in most instances. This protection is in stark contrast to Federal Rule of Civil Procedure 26, which mandates that parties disclose relevant information regarding any matter not privileged.

Because Rule 26 has been broadly interpreted, U.S. discovery generally is viewed as the most far-reaching among common law countries. This expansive scope directly conflicts with the protections afforded to personal data in the European Union. It is, therefore, not surprising that EU privacy laws restrict the “transfer” of personal data to the United States from the European Union. This article does not seek to define personal “data.”

EU privacy laws protect against the “processing” (reviewing) and “transfer” (which can include viewing, from the United States, data “hosted” on an EU Web site) of personal data — “any information relating to an identified or identifiable” individual, which is construed broadly to include information such as an e-mail address. See, e.g., The Sedona Conference Working Group on International Electronic Information Management, Discovery and Disclosure, Framework for Analysis of Cross-Border Discovery Conflicts 8-9 (August 2008) (hereinafter Sedona Report).

For more see law.com.