International eDiscovery

 

Over the past few weeks, we’ve discussed the general challenges of international eDiscovery, use of the 41 year old Hague Convention for requesting ESI from other countries, use of Section 1782 for foreign entities to request ESI from US entities, and the effect of privacy laws in other countries on discovery requests.

In the course of pursuing discovery requests in foreign nations, US lawyers also often run into another serious legal snag: blocking statutes. These statutes prevent certain types of information from leaving the country where it originates, and can interfere with discovery of evidence in a number of ways.

The purpose of blocking statutes – also known as "secrecy laws" – is to protect information that is considered commercially significant or relevant to national security in the country where it is located, or where it originated. Certain countries have blocking statutes that protect particular industries or types of information. In Switzerland, for instance, the disclosure or transmission of bank account information is forbidden by blocking statutes. Other countries, such as France and Germany, have created blocking statutes that make certain types of discovery illegal within their borders, complicating matters for attorneys requesting information.

A French blocking statute dating back to 1980 has been known to cause problems in the past few years for attorneys, by criminalizing cooperation with US discovery – in one case, resulting in hefty fines for a French lawyer who contravened that blocking statute. In other cases, a refusal to submit documents for discovery based on blocking statutes and the Hague Convention may be overruled by national courts depending on the circumstances of the case and the type of discovery being ordered.

Blocking statutes present an odd legal conundrum, because they don't prevent American attorneys from requesting privileged information or American courts from ordering discovery – they simply make it illegal for that information to be disclosed by nations of the foreign country in question. As a result, American courts and attorneys have sometimes expressed skepticism about the validity of these statutes and the likelihood of penalties being enforced against those who contravene them.

In fact, those who contravene these blocking statutes are seldom charged or fined. When the statutes are enforced, however, the penalties are steep.

Blocking statutes can be frustrating to organizations responding to discovery requests, because they put foreign individuals and organizations who are ordered to submit privileged information in the untenable position of either breaking their own country's laws – and facing penalties for contravening blocking statutes – or receiving sanctions from US courts for refusal to produce discovery documents. In many cases, foreign entities prefer to confront US courts rather than risk penalties in their own home countries, which forces US courts to address the failure to comply with these requests.

So, what do you think? Have you ever had a discovery request denied because of a blocking statute? Please share any comments you might have or if you'd like to know more about a particular topic.

 

US lawsuits are very public, involving discovery and other public disclosures that go against the cultural traditions and laws of many nations in other parts of the world. In the European Union (EU), for instance, many countries have privacy protection laws that forbid the disclosure of "personal information" – and the definition of personal information here can mean anything from addresses and phone numbers to even the names of individuals if they are used in work reports and business documents.

Despite the complications created by these privacy laws, US courts will apply the Federal Rules of Civil Procedure to non US entities if it has jurisdiction over them.  Nonetheless, litigators often find themselves in a bind where they must either impel evidence through means that are potentially illegal in the country of the non US entity, or lose traction in a US-based lawsuit. That means lawyers pursuing discovery in foreign locales often must take pains to familiarize themselves with the laws of the country and province where they are seeking information.

• The EU Data Protection Directive does not forbid the transfer and processing of electronically stored information (ESI), but it does complicate the process considerably where it corroborates other European data protection laws.
• US companies and litigators may legally request and receive documents protected under the Data Protection Directive if the company is a member of the US Department of Commerce Safe Harbor, a group whose mandate is based on seven key principles of data protection.
• Even where the Safe Harbor and Data Protection Directive allows US companies to access information for pre-trial discovery, the laws of specific EU states may not permit businesses to disclose information without being subject to harsh penalties for violating national privacy laws.

Although US courts don’t always recognize the limitations placed on international discovery by these privacy laws, they do appreciate the balance of delicate factors involved in seeking discovery internationally. In assessing the importance of gaining access to specific ESI, the courts will generally consider a combination of factors, including the importance and origin of the information, the availability of access, the effects of non-compliance with international privacy laws on the US and the nation state where the information is located, and the potential hardship that would be imposed on the individuals or businesses who have the power to produce the information. A careful weighing of the privacy needs of individuals versus the needs of the parties involved in litigation must be assessed.

Individuals are capable of providing their consent to allow documents containing their personal information to appear in an international court. However, they can revoke this consent at any time. Even where consent is given, and certainly where it is not, every effort must be taken to protect the security of private information and to destroy such information within a reasonable amount of time. Electronically stored data must be anonymized or protected by pseudonyms, and personal identifiers such as names, addresses and phone numbers must be purged from information presented in eDiscovery.

So, what do you think? Have you ever dealt with privacy protection laws in international jurisdictions? Please share any comments you might have or let us know if you'd like to learn more about a particular topic.

 

We've discussed international eDiscovery issues and the process that U.S. attorneys have to go through as they request electronic documents and evidence from locations in other countries around the world in a couple of recent posts. But what about the reverse? Does the Hague Evidence Convention cover international requests for electronic information that is held by U.S. businesses and individuals?

In fact, it does, but the Hague Convention is not the primary legal statute used by foreign entities to request discovery within the United States. Section 1782 of Title 28 of the United States Code, widely known as "Section 1782," is a federal statute that allows attorneys outside the U.S. to request discovery in American courts from an American citizen or business. This statute lays out the requirements that must be met by any international requests for either testimonial evidence or documents – including electronic documents requested in the discovery process.

In many ways, it's easier for foreign attorneys and interested parties to request data within the U.S. Section 1782 than it is for U.S. lawyers to request discovery in other countries. Section 1782 is designed to simplify the process and spell out what U.S. courts are trying to acquire through these international discovery requests. There are three requirements in Section 1782 for anyone applying for discovery information:

1. The applicant under Section 1782 must demonstrate that he or she is an "interested person" in a proceeding outside the U.S.;
2. The proceeding must be conducted before a foreign "tribunal"; and
3. The application under Section 1782 must be filed in the district of the person or entity from which evidence is requested.

Section 1782 discovery isn't effortless by any means – it requires several types of proof of relevance before discovery will be permitted – but it does provide a framework for legal discovery across national boundaries, one that is arguably much friendlier and more transparent than the rules U.S. attorneys must navigate when conducting discovery requests in other nations in the European Union (E.U.), Asia, Africa, and elsewhere around the world.

So, what do you think? Have you ever been involved in a proceeding that involved Section 1782 discovery? Please share any comments you might have or if you'd like to know more about a particular topic.

 

Last week, we talked about several challenges of international eDiscovery, including different laws regarding discovery practices, as well as cultural and privacy issues.  This week, we will talk about one of the primary mechanisms for conducting discovery internationally – the Hague Convention.

What is the Hague Convention? The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters – commonly known as the Hague Evidence Convention – is an international treaty created by the Hague Conference on Private International Law. It was negotiated in the late 1960's and signed on March 18, 1970.

There are 54 countries contracted to the Hague Convention, which means they have agreed to permit international attorneys to request evidence across foreign borders without first requiring that they pursue diplomatic approval. U.S. attorneys often rely on the provisions of the Hague Evidence Convention when conducting cross-border eDiscovery requests. As a result, they can save time and paperwork by avoiding consular and diplomatic channels and corresponding directly with legal counsel and individuals in international countries where the Hague Convention has been ratified.

Although it can simplify the process of requesting eDiscovery across borders, the Hague Convention does not guarantee that international discovery requests will be honored, in part or at all. Foreign courts in receipt of discovery requests will often exercise their own judgment in responding, based on the laws of their own nation states. As a result, eDiscovery requests may be refused or misinterpreted without any penalty under the Hague Convention. What's more, some of the countries that have signed choose to exert limits on the extent to which they agree with the Hague Convention, further complicating matters in cases where international eDiscovery is required from groups or individuals within these nations' borders. Use of the Hague Convention may be slow, inefficient, and does not guarantee results.

The U.S. was instrumental in the creation of the Hague Convention and one of the first countries to adopt it.  However, many international parties requesting information in the U.S. now do so via Section 1782 Discovery. This simpler provision in Section 1782 of Title 28 of the United States Code facilitates discovery cases where a document or electronic information is located in the U.S.  We will talk about this federal statute in more detail in our next post regarding international eDiscovery.

So, what do you think? Does the Hague Convention simplify the discovery process internationally, or is it time for a new, more up-to-date treaty or provision to facilitate international eDiscovery? Please share any comments you might have or if you'd like to know more about a particular topic.

Happy Independence Day from all of us at eDiscovery Daily and Trial Solutions!