I do not usually pass on things sent to me without adding some value (or, at least, some comment) of my own. I will make an exception for a report just in from James Daley, co-chair of the Sedona Conference WG6 Working Group, of the WG6 presentation today to the Plenary Session of the Article 29 Working Party in Brussels.
I will interpose only the briefest of introductions for the benefit of those bewildered by the whole subject, a group which, alarmingly, includes many for whom it all matters very much, if only they knew it.
The Article 29 Working Party is an independent European advisory body on data protection and privacy, established under Article 29 of EU Directive 95/46/EC. Its tasks include consideration of the conflicts which arise between EU data protection and privacy laws and the requirements of foreign courts and other bodies for documents which may contain private information covered by the Directive. The Working Party issued a document on 11 February 2009 called Working Document 1/2009 on pre-trial discovery for cross border civil litigation (“WP158”). The Sedona Conference responded on 30 October 2009 with a formal Comment of The Sedona Conference® Working Group 6 to Article 29 Data Protection Working Party Working Document 1/2009.
You may find it helpful to refer to WP158, the Sedona Conference Comment and to the WG6 section of the Sedona Conference web site.
The whole subject is at once deeply complex and of increasingly vital importance. It reminds me of the Eastern Question, which dominated international politics in the mid-19C, and of which Lord Palmerston said that only three people had ever understood it: one was dead, the second mad and he himself had forgotten. Jim Daley, fortunately, is in none of those conditions. I give verbatim his report of today’s presentation.
WG6 was represented by myself, Co-Chair of WG6 (Daley & Fey), and WG6 Editorial Board Members, Amor Esteban (Shook, Hardy & Bacon) and Patrick Kos (Roche—Basel, Switzerland).
We were greeted warmly by the new Article 29 Working Party Chairman, Jacob Kohnstamm, Dutch Data Protection Commissioner.
I provided some brief opening remarks about the purpose and mission of The Sedona Conference generally, and of the history and work of WG6, in particular. We outlined major contours of the WG6 response to WP 158, a copy of which is attached. This included reiteration of areas of common ground, and areas where there are opportunities for further dialogue (anonymization, first recourse to Hague convention, etc.).
We received very spirited questions from the several Working Party members regarding why anonymization was such a burden for companies responding to cross border discovery, and why recourse to the Hague convention posed practical issues. We were also asked whether we believed there is really any hope that the U.S. federal judiciary will consider data protection and privacy and blocking statutes in balancing the privacy interests of Data Subjects with the disclosure obligations of multinational corporations.
The Working Party took our suggestions under advisement, and is considering whether to engage a subgroup to continue its dialogue with WG6 on these issues.
This is a subject to which I will return, not least because I took part in panels about it for Epiq Systems and Trilantic at LegalTech in New York a couple of weeks ago. The interest which was shown at LegalTech suggests that Jim Daley’s report claims priority, and I am grateful to him for letting me have it so promptly.
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