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International Restrictions on Releasing Personal Information

By M. James Daley and Laura Clark Fey
September 29, 2009

In June, data privacy experts from around the globe converged in Barcelona, Spain for The Sedona Conference's' International Programme on Cross-Border eDiscovery and Data Privacy. Participants, ranging from academics to data commissioners to judges to in-house and outside counsel from countries throughout North America, South America, Europe, Asia and Australia, gathered to dialogue on the legal, technology and cultural challenges posed by cross-border discovery conflicts. A wide variety of ideas were shared, but participants recognized that this international dilemma is not going to be solved overnight.

The challenge can be summarized as follows: With the globalization of business and the resultant flow of data across country borders, data sought in litigation, particularly litigation involving multinational corporations, increasingly includes personal information relating to employees, customers and/or clients that is located in foreign countries. A significant amount of that data is in the form of e-mails, which are recognized as personal data in most of the world other than the United States. The dilemma confronted by corporate counsel involved in such litigation is whether to disclose personal information located in foreign countries with laws that severely restrict the processing and transfer of personal data and risk being punished there with civil and/or criminal penalties; or to filter out the personal data and risk being sanctioned in the U.S. for incomplete responses to e-discovery requests.

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