The Sedona Conference has published the public comment version of its Practical in-house approaches for cross-border discovery and data protection. I have not yet had the opportunity of reading this version, but I read, and was impressed by an earlier draft.
The Sedona Conference is able to draw on the resources of a wide range of people and companies who really understand its wide range of subjects, and cross-border discovery is no exception. Its 2011 work, International principles on discovery and data protection, is both a practical guide and an authoritative statement of principles which can be referred to in court.
I was at the 7th Annual Sedona Conference International Programme held in Hong Kong in July, the location reflecting the increasing importance of the Asia-Pacific region for trade purposes and the consequent increase in the need to navigate multiple data protection regimes for the purposes of US litigation and regulatory demands. The chief message which came out of that was that US investigators, whether for litigation purposes, for regulatory requirements or other types of investigation, cannot simply expect to collect, process and use data from these jurisdictions as if they were at home.
Three broad messages arise:
It is vital to take local advice on the relevant laws in each jurisdiction from which data is to be collected and to seek the help of both local lawyers and eDiscovery providers with experience of working within their constraints.
It is equally vital to set expectations of courts and others, to explain at a very early stage what the difficulties are, and to seek consensus or authority (e.g. by a protective order) which offers the best possible results consistent with local restrictions. It is not enough to assert that it is “difficult” or “too expensive” to undertake the exercise; one must be able to explain what is the best outcome that can be achieved and to show if possible that the result, whilst perhaps falling short of apparent perfection, is nevertheless adequate for the purpose. That in turn requires an understanding of the balance of factors set out in the Aérospatiale decision of 1986. Reference to Sedona’s International Principles can be extremely helpful in this context.
Part of that setting of expectations includes an understanding of the practical issues which arise to do with language, such as time zone differences, cultural variants, availability of appropriately skilled people, customs requirements and all the other things which provide a layer on top of the normal difficulties of discovery.
My most recent contribution to the discussion, apart from my own interventions at the Hong Kong programme, is my article Contrasting “that whole truth and justice approach that us Yanks have” with the rest of the world. Really?
Sedona’s new Practical in-house approaches for cross-border discovery and data protection adds a valuable resource to the existing thinking on this subject, and I commend it.
There is a set of my photographs of the Hong Kong programme here.