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Navigating the Potentially Conflicting Demands of U.S. Discovery Obligations and EU Data Protection Laws

By Michael Miller and and Karin Retzer
July 28, 2011

Companies with operations in the EU can be pulled in different directions when confronted with U.S. discovery demands for documents and information located in the EU. Complying with U.S. discovery demands can involve enormous effort and expense, even in the best of circumstances. But the process can become even more difficult when EU data protection laws prohibit the disclosure of the requested information. On the one hand, U.S. courts can seek to compel litigants and third-party witnesses to produce documents and other information, and impose serious sanctions for failure to do so. On the other hand, data protection authorities in the EU can view the disclosure, whether court ordered or not, as itself violating data protection rules, and can impose penalties for complying with the demands. In fact, a balanced view of the issue suggests a way forward that should satisfy both sides of the conflict.

Sources of the Conflict

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