eDiscovery Daily Blog

eDiscovery Trends: The Sedona Conference International Principles


One of our eDiscovery predictions for 2012 was that there would be a continued focus on International eDiscovery and that was also a prediction of three of the other sets of eDiscovery predictions we evaluated.  Multinational companies with operations in the United States are often subject both to the US civil procedure discovery rules as well as the privacy laws of the European Union and other countries where they operate.  Trying to comply with both sets of rules and laws can be difficult when those rules and laws conflict.

To attempt to address those conflicts, Working Group 6 of The Sedona Conference (TSC) has drafted the 2011 Public Comment Version of The Sedona Conference® International Principles on Discovery, Disclosure and Data Protection (“International Principles”), downloadable here.  This is the European Union Edition, which as noted in the Foreward, states “[a]lthough focused principally on the relationship between U.S. preservation and discovery obligations and the EU Data Protection Directive . . . is intended to apply broadly wherever Data Protection Laws, regardless of national origin, conflict with U.S. preservation and discovery obligations”.

As with other TSC “Principles” documents, there are a collection of principles around which the document is built which are listed at the beginning of the document and then discussed within it.  Here are the six principles:

  1. With regard to data that is subject to preservation, disclosure, or discovery, courts and parties should demonstrate due respect to the Data Protection Laws of any foreign sovereign and the interests of any person who is subject to or benefits from such laws.
  2. Where full compliance with both Data Protection Laws and preservation, disclosure, and discovery obligations presents a conflict, a party’s conduct should be judged by a court or data protection authority under a standard of good faith and reasonableness.
  3. Preservation or discovery of Protected Data should be limited in scope to that which is relevant and necessary to support any party’s claim or defense in order to minimize conflicts of law and impact on the Data Subject.
  4. Where a conflict exists between Data Protection Laws and preservation, disclosure, or discovery obligations, a stipulation or court order should be employed to protect Protected Data and minimize the conflict.
  5. A Data Controller subject to preservation, disclosure, or discovery obligations should be prepared to demonstrate that data protection obligations have been addressed and that appropriate data protection safeguards have been instituted.
  6. Data Controllers should retain Protected Data only as long as necessary to satisfy legal or business needs. While a legal action is pending or remains reasonably anticipated, Data Controllers should preserve relevant information, including relevant Protected Data, with appropriate data safeguards.

The appendices include a 15 page Model Protected Data Protective Order and a Cross-Border Data Safeguarding Process + Transfer Protocol, which is an ease-of-reference guide identifying common techniques for achieving best possible legal compliance with conflicting U.S. eDiscovery rules and Data Protection laws when processing and transferring foreign data for U.S. litigation.

As noted in the document, “[o]ther editions of the International Principles are planned for publication by Working Group 6 that will focus on sovereign countries or regions other than the EU and the intersection of their data protection laws and U.S. preservation and discovery requirements.”  So, there is more to come!

To submit a public comment, you can download a public comment form here, complete it and fax (yes, I said fax) it to The Sedona Conference® at 928-284-4240.  You can also email a general comment to them at tsc@sedona.net.

So, what do you think?  Do the International Principles provide significant guidance for addressing international discovery issues?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.