Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

International Restrictions on Releasing Personal Information

BY M. James Daley
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.

U.S. courts have generally rejected the interests of countries with strict data privacy laws in shielding data located in their countries from discovery in U.S. proceedings. The Sedona Conference' Framework for Analysis of Cross-Border Discovery Conflicts: A Practical Guide to Navigating the Competing Current of International Data Privacy and e-Discovery (2008) (“The Sedona Conference' Cross-Border Discovery Framework”) at 17. For example, in Richmark Corp. v. Timber Falling Consultants, 959 F.2d 1468 (9th Cir. 1992), the Ninth Circuit upheld the lower court's sanction against a Chinese corporation for failure to comply with discovery orders despite the corporation's argument that disclosure of information would have subjected it to criminal prosecution in China under Chinese State Secrecy Laws. Sanctions for failure to comply with a U.S. discovery order can be significant ' including large monetary sanctions, witness preclusion and even dismissal.

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models Image

Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.

Hyperlinked Documents: The Latest e-Discovery Challenge Image

As courts and discovery experts debate whether hyperlinked content should be treated the same as traditional attachments, legal practitioners are grappling with the technical and legal complexities of collecting, analyzing and reviewing these documents in real-world cases.

Identifying Your Practice's Differentiator Image

How to Convey Your Merits In a Way That Earns Trust, Clients and Distinctions Just as no two individuals have the exact same face, no two lawyers practice in their respective fields or serve clients in the exact same way. Think of this as a "Unique Value Proposition." Internal consideration about what you uniquely bring to your clients, colleagues, firm and industry can provide untold benefits for your law practice.

Risks and Ad Fraud Protection In Digital Advertising Image

The ever-evolving digital marketing landscape, coupled with the industry-wide adoption of programmatic advertising, poses a significant threat to the effectiveness and integrity of digital advertising campaigns. This article explores various risks to digital advertising from pixel stuffing and ad stacking to domain spoofing and bots. It will also explore what should be done to ensure ad fraud protection and improve effectiveness.

Turning Business Development Plans Into Reality Image

This article offers practical insights and best practices to navigate the path from roadmap to rainmaking, ensuring your business development efforts are not just sporadic bursts of activity, but an integrated part of your daily success.