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A Balancing Act: Mitigating Data Privacy Risks in Cross-Border Discovery
The intersection of foreign laws governing data collection and cross-border discovery operations continues to be a potentially volatile conjunction. Global enterprises have been cautioned to tread carefully when responding to U.S.-driven discovery requests, as expansive discovery exercises, so common in the U.S. under federal and state laws of civil procedure, can be completely foreign and often legally problematic in jurisdictions abroad.
Accordingly, discovery requests implicating custodians and data outside the U.S. can potentially put organizations in a Catch-22: either fall short of their discovery obligations on the one hand or fall afoul of legislation in other nations prohibiting or limiting data collection and transfer to the U.S. on the other. Laws potentially conflicting with discovery obligations include blocking statutes, requirements pertaining to works council agreements and, perhaps most significantly, data privacy regulations.
In particular, it has been EU data privacy regulations, including the General Data Protection Regulation and its predecessor the Data Protection Directive of 1995 that have threatened to pose the most significant potential roadblocks to discovery requests. Given the care with which personal data must be treated under the GDPR (security requirements, data minimization obligations, rights afforded data subjects), accountability for those handling such data and the regulatory and civil fines possible under the regulation, cross-border discovery across the EU seems to warrant an especially heightened level of scrutiny.
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