eDiscovery Daily Blog

• June 6, 2016

Nearly nine months after releasing a new publication for public comment to provide guidance for the cross-border data transfer and discovery challenges that many organizations and in-house counsel regularly confront, The Sedona Conference® Working Group 6 on International Electronic Information Management, Discovery and Disclosure (WG6) has released its final version of that guide.

WG6 – the Working Group responsible for The Sedona Conference International Principles on Discovery, Disclosure and Data Protection (“International Litigation Principles”), has released the final version of the new guide titled Practical In-House Approaches for Cross-Border Discovery and Data Protection (“Practical Approaches”).  The original plan was to open the guide for public comment for a 3 month period through December 15, 2015 and then publish the “final” version early this year.

Of course, a lot has happened since then.

In early October, the Court of Justice of the European Union (‘CJEU’) ruled that the safe harbor pact enabling transatlantic data transfers between the U.S. and European Union should be struck down, agreeing with its top legal adviser in finding that the deal fails to provide an adequate level of protection for EU citizens’ data.

Then, in early February, an important new framework, intended to protect the fundamental rights of Europeans where their data is transferred to the United States and ensure legal certainty for businesses, was agreed upon – the EU-US Privacy Shield.  Within the same month, the European Commission released details on that new trans-Atlantic data transfer arrangement.

Interestingly enough, I find no mention of the safe harbor pact having been struck down and only two brief references to privacy shield certification within the final publication.  Hmmm.

The 50 page final guide (which includes extensive appendices) includes the following sections:

• In-House Perspectives on Discovery and Data Protection: Describes the differing notions of privacy and discovery that exist around the world today;
• The Sedona Conference International Principles on Discovery, Disclosure & Data Protection: Recap of the six international principles originally introduced in the International Litigation Principles Guide;
• Practice Points for Conducting Cross-Border Discovery in View of Data Protection and Data Privacy Regulations: Eight detailed practice points, each that provide a hypothetical situation, for addressing everything from the need to proceed deliberately in countries with comprehensive Data Protection Laws to releasing legal holds and return or dispose of data promptly upon termination of a matter;
• Practical Approaches Appendices: The Sedona Conference In-House Tool Kit for Data Protection and Cross-Border Discovery: A handful of useful documents that include an 20 page eDiscovery and Data Protection Model Guideline (which includes answers to FAQs), a Template Cross-Border Discovery Management Form for In-House eDiscovery Teams, a one page Talking Points Infographic for Internal Business Clients and Employees and an Exemplar Heat Map of Data Protection and Data Privacy Regulations.

The PDF guide can be downloaded here.  As always, it’s free!

In its email announcing the final Practical Applications guide, The Sedona Conference also stated that a WG6 drafting team “has been working on a complementary publication, International Principles for Addressing Data Protection in Cross-Border Government & Internal Investigations: Principles, Commentary & Best Practices”, which “will be posted on the Sedona Conference web site for public comment in mid-June”.  So, we have another guide to look forward to soon!

So, what do you think?  Does your organization struggle with cross-border discovery?  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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.