There is one major difference between the general run of discovery problems and those relating to international and cross-border discovery. The former are soluble – competence and co-operation coupled with judicial management would fix most ediscovery problems tomorrow; the trans-jurisdictional issues involve serious conflicts, not just of laws but of culture. As things stand, these seem irreconcilable, and it sometimes feels that the best we can do is to make people aware of and sensitive to the issues.
The panel assembled to discuss these matters at CEIC was well-qualified. M James Daley of Daley & Fey, LLP is Co-Chair of The Sedona Conference Working Group on International Electronic Information Management, Discovery and Disclosure (WG6) and a member of a delegation which recently met with the Article 29 Working Party in Brussels (see my article Sedona Conference WG6 presentation to Article 29 Working Party in Brussels. Dominic Jaar of Ledjit Consulting Inc., is Chief Executive Officer at Canadian Centre for Court Technology and is a member of The Sedona Conference’s working groups 1 (USA) and 6 (International). George Rudoy of Shearman & Sterling, LLP has more practical experience than almost anyone of managing and doing foreign data collections. Patrick Burke of Guidance Software was the moderator.
Jim Daley gave a wide-ranging talk on technology, privacy and the law. US judges, he said, were bound to allow and require the discovery of documents and information in court proceedings. This is seen as a public good, supporting the right to a fair trial even at the expense of privacy. Outside the US, however, personal privacy is an unmitigated human right ranking above the right to a fair trial or the right to get information from an adversary. Pausing there, it would be fair to say that non-US citizens do not see this as an either / or situation in such stark terms. Much of the point of these international discussions is to see ourselves as others see us, and this US view of non-US principles is a valuable one.
Europe’s history of oppression under the Nazis, the Stasi and their like may explain this bias, Jim said, and be the source of the blocking statutes and data protection laws. Even as he was speaking, The Times was serialising the memoirs of Roger Boyes, who was its correspondent in Eastern Europe in the 1980s and who has been going through the file which the authorities kept on him at the time. This is not ancient history.
There are severe penalties for breach of data protection laws, as shown by the recent convictions of Google executives in Italy. The restrictions are general and widespread, unlike privacy provisions in the US which are industry-specific – health, for example.
Part of the problem, from a US perspective, was that “processing” in an EU data protection context has a definition very much wider than its general meaning. It goes beyond de-duplication, search etc and extends to any touching of the data. Personal data is anything which can identify a person – an e-mail which bccs someone is personal to him. Some countries guarantee personal privacy by constitution, others by legislation. In some Latin American countries individuals have a constitutional right to information about what is stored about them
There are exceptions, e.g. where the processing or transfer is in the interest of the data subject – so managing health benefits or paying salaries might fall within a derogation. There are usually notification requirements and need for permission even in this kind of context.
The US is the poster child for how not to protect personal data – many feel that the US has sold out over the years in the name of commerce and economic growth. Jim Daley took us briefly through discovery in various jurisdictions, from the “expansive” US, through Canada and the UK and to Germany where you need only produce documents which support your claim unless opponents can identify other documents specifically. Jim skipped quickly through The Hague Convention, the five-factor test in Aerospatiale, French blocking statutes, and the case of Christopher X, an outside counsel working for a US law firm in Paris on proceedings in California who was fined and deprived of his right to practice as an advocate for beach of a French blocking statute.
Sedona’s WG6 is trying to find common ground, Jim said. There is room for optimism, but it will be a matter of risk management for some time to come. He pointed to http://ec.europa.eu/justice_home/fsj/privacy/index_en.htm as a good source of primary information.
He pointed also to the Sedona Framework for Analysis of Cross-Border Discovery Conflicts and to the Second Annual Sedona Conference International Programme on Cross-Border eDiscovery & Data Privacy to be held on 15-16 September, 2010 at the Westin Grand Hotel, Washington, DC. I will be there.
If I cannot do justice to Dominic Jaar’s expert survey of Canadian ediscovery, it is because it was more comprehensive than I could note down. He described Canada as an “e-dinosaur”, where 99% of documents in litigation are still paper. There are new rules in, for example, Nova Scotia and Ontario, and British Columbia and Alberta have practice directions which point to the Sedona principles.
Proportionality weighs heavily in the Canadian courts and you cannot ask for large quantities documents if either disproportionate cost or privacy breaches may result. A judge can impose proportionality saying “I am going to have to read this so I don’t agree with your big discovery”.
There is a constitutional right to privacy. Dominic drew attention to Canada’s reasonable claim to be the best place for processing data where you could, he said, compare EU and US sets of documents and at least de-duplicate them without breach of EU rules.
Canadian blocking statutes are a reaction to US extra-territorial claims and prevent Canadian companies from disclosing, for example, links with Cuba or matters relating to asbestos. This was an area which I had not come across before – the idea that industry-specific subjects must be kept out of the US for fear of the consequences. Privilege in Canada is a quasi-constitutional right which is lost as soon as the information is disclosed anyway, so disclosure in US courts waives privilege in Canada.
Ediscovery in Canada is a mountain which I have yet to climb. E-dinosaur it may be, so Dominic tells us, but it is the source of much of the serious thinking on the subject. Applied Discovery, one of the sponsors of the e-Disclosure Information Project, has stronger Canadian interests than most, with a page of Canadian eDiscovery resources, and a summary of court rules as well as expertise focussed on Canadian legal issues. It is time I went there.
George Rudoy’s talk fell into two broad parts. He took us first through the linguistic challenges posed by multinational ediscovery, explaining the shortcomings of ASCII relative to Unicode in handling the very wide range of characters which are likely to be encountered. All that most of us need to understand about this is that ediscovery tools must support Unicode.
I am more interested in the cultural and legal aspects of multinational ediscovery than in technical ones, and if there are any other Russian born US-based ediscovery experts apart from George, I do not know them. He took us through some of the practical implications of collecting data in Russia and China where government interests are the factor to consider rather than privacy considerations. What he called “cultural memories” are a key factor in a way which may be more extreme and more recent, but are of the same kind as, the cultural background to the considerations which US data collectors must be alert to in Europe generally. “The rules and practice are not necessarily aligned”, he said, which should be enough to alert the rest of us to the fact that a US court order, a passport and a dictionary are not by themselves enough by way of preparation.