FTI Consulting is running a three-part series of panel discussions on managing multinational discovery matters effectively. Separate webinars will cover data privacy laws, cultural and language difficulties faced by legal teams aiming to run cost-effective and defensible eDiscovery for litigation and investigations overseas. One webinar covers Latin America, another Europe, and the third Asia-Pacific. Registration for any or all of them can be found here.
I am taking part in the Europe one, together with Craig Earnshaw of FTI in London and Denise Backhouse of Littler. I cannot remember how many years it is since I first did a cross-border panel with Denise Backhouse; she has been doing this kind of work for a long time and brings a calm and practical approach to a problem which many find alarming. It has many facets – of law, of technology and of practical management. Craig Earnshaw has years of experience of doing collections across borders; he will moderate what we hope will be a discussion between us rather than a series of lectures.
Two FTI articles have been published recently which cover the same ground in different parts of the world. One is by Craig Earnshaw and is called Issues In Global Discovery In The Wake Of Heightened Privacy Concerns.
Data protection laws were, Craig says, increasing in both number and severity around the world even before Snowden and the NSA brought the issues, as he puts it “from the boardroom table to the dinner table”. He also raises a point which cannot be over-emphasised – if the starting point is understanding what problem you face, the second stage is to tell the court or regulators early as possible:
“Inform the judge and the other side (if it’s litigation) or the regulator or government agency you’re responding to that there are international aspects to your work. If you’ve got to deal with French blocking statutes and European data privacy legislation, you’re much more likely to receive a better response from a U.S. judge if you raise the fact on day one rather than on day minus one of your discovery deadline.”
The other article is by Richard Kershaw of FTI in Hong Kong and Michael Vella from the Shanghai office of Jones Day; it is called Lawyers Beware of China’s Thorny Privacy Laws, and covers the ground implied by its title – those who think that the EU poses difficulties for US data collections may take comfort from discovering that it can be very much harder in China.
Both articles are concise and authoritative and well worth reading.