By: Brett Tarr, eMag Solutions
Globalization and the growing mountain of electronically stored information inevitably will lead to an increase in discovery requests for ESI located abroad. Companies are meeting the challenge of globalization by creating networks of electronic data that allow employees around the world to connect to the same set of data no matter where it is located.
But no consistent methodology exists for U.S. courts to evaluate whether discovery of ESI abroad is appropriate, and if so, the consequences for not complying with a discovery order.
Although international discovery is not a new problem, global companies, the growth of international data infrastructures and the explosion of ESI will bring the issues of e-discovery to the forefront of international litigation. Courts will be faced with comity considerations and issues related to the burden and cost of e-discovery, as well as complex international data protection laws.
In much of the world, countries have adopted legislation that protects the privacy of electronic information. These laws may prohibit the electronic transmission of information across borders, without the express consent of the subject of the communication. In many jurisdictions (notably, many countries in the European Union, which has adopted the EU Privacy Directive), it may be impossible to obtain the consent of employees; such consent often is considered to be inherently coerced due to the subordinate nature of the employee relationship.
The increase in globalization and ESI have led to legislation in some countries to protect the disclosure of certain information. Some of this legislation specifically has targeted the protection against production of data for litigation. A party seeking protection against compelled discovery, relying on the basis that foreign law bars the production, has the burden of proving that the foreign law actually prohibits production of the data at issue.
This conflict between U.S. and European law is not merely legal; it reflects nothing less than a clash of cultures. In the litigation context, restrictions on the international transmission of data can present an enormous barrier to the discovery of electronic information kept overseas. Thus far, there appears to be no reported case law construing the conflict between discovery obligations that are broader than discovery in virtually every other jurisdiction in the world, and the restrictions on the transmission of electronic data imposed by the EU Privacy Directive. Discovery in the U.S. is built on the well-founded premise that all information that “appears reasonably calculated to lead to the discovery of admissible evidence” is discoverable.
Ultimately, courts in the U.S. will need to develop and apply a consistent standard to decisions involving the discovery of international ESI.
The view on privacy varies internationally and is strictly regulated in many countries. For instance, the European Union Data Protection Directive establishes a regulatory framework around the movement and treatment of personal data in the European Union. In addition to the personal data protection laws, the European Court of Human Rights has found that the right to private communications in the workplace is a fundamental freedom covered under the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Data Protection Directive allows the transfer of personal data between countries only if the country receiving the data ensures an adequate level of protection. In response to the restrictive Data Protection Directive, the United States Commerce Department negotiated a safe harbor with the EU, which provides requirements that U.S. companies may choose to adhere to in order to participate in the free exchange of personal data with companies in the EU. Personal data has been broadly construed under the Data Protection Directive to include e-mail and other commonly requested ESI.
U.S. courts have found that privacy laws promulgated under the Data Protection Directive reflect a legitimate foreign interest that needs to be considered when deciding discovery issues.
In addition to privacy laws created under the Data Protection Directive, many countries view privacy in the workplace differently to the U.S. There is generally no expectation of privacy in workplaces in the U.S., and so requesting and receiving e-mail in discovery is commonplace. In the EU, however, there is an expectation of privacy in the workplace, and so e-mail sent and received via work accounts may not be discoverable.
In a recent holding, the European Court of Human Rights found that under the European Convention for the Protection of Human Rights and Fundamental Rights, which provides that “everyone has the right to respect for his private and family life, his home and his correspondence”, telephone calls and e-mails made by an employee from work fall within the Human Rights Convention’s notion of “private life” because they may contain “personal information”. In that case, the court found that the employer’s monitoring of phone calls and e-mails without notice violated the employee’s human rights under the Convention.
French courts also have evaluated these protocols in numerous cases, with the results typically following the same trend as the European Court of Human Rights in limiting an employer’s ability to inspect an employee’s e-mails, files or computers, even when the employer has reason to suspect wrongdoing on the part of the employee (Philippe K. v. Cathnet-Science, Cour de Cassation, Chambre Sociale). These holdings, combined with the Data Protection Directive’s finding that personal data includes e-mail, raise some serious concerns about whether international law will prohibit discovery of foreign e-mail in U.S. litigation in the future.
Historically, foreign blocking statutes have been one of the most common impediments to U.S. discovery of information located abroad. The scope of the statutes varies, but they generally prohibit production of documents and disclosure of information related to a particular topic or industry. Many blocking statutes were enacted specifically to thwart U.S. discovery. Courts recognize that blocking statutes, like the French Blocking Statute, have been constructed purposefully to provide foreign nationals with tactical weapons and bargaining chips in U.S. courts.