Show Some Respect: International Privacy and Comity Concerns May Become More Important in Foreign E-Discovery Disputes

Twenty-five years ago in Aerospatiale v. District Court of Iowa the United States Supreme Court admonished lower courts that international comity compels them to “take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and for any sovereign interest expressed by a foreign state.” And for the last twenty-five years, courts generally have not heeded that advice, giving short-shrift to the idea that foreign privacy or data protection laws must be enforced if the result is to limit discovery of relevant information. At the urging of lawyers and several influential organizations, that could finally be changing.

Recent announcements from two influential groups — the American Bar Association and The Sedona Conference® — make it clear that those who practice in the area of cross-border disputes need courts to better balance the tension between the need for information and the “due respect” owed to foreign data protection and privacy laws in connection with the collection and production of electronically stored information (ESI) originating outside the United States.

Recognizing the complexities of modern civil litigation and the frequency with which lawyers now confront gathering ESI in other countries, the ABA on February 6, 2012 issued a Report and Resolution 103 urging all courts to “consider and respect” the “data protection and privacy laws of any applicable foreign sovereign, and the interests of any person who is subject to or benefits from such laws, with regard to data sought in discovery in civil litigation.” The ABA Report accompanying Resolution 103 recognizes that failing to give “due recognition to the concerns of privacy and data protection of other nations can result in a host of negative consequences,” for example, potential adverse rulings overseas against U.S. litigants as well as stunting “the growth of global commerce, including the cross-border movement of personnel and the hiring of local employees.”

The ABA is not alone in its call for courts to show more respect to international privacy and data protection laws. Recognizing the “unprecedented explosion in information” made possible because of the “easily-replicable nature of ESI” and electronic data generally that is “unconstrained by traditional geographic borders,” The Sedona Conference® in December 2011 developed and published a set of six International Principles on Discovery, Disclosure & Data Protection (available for download at: www.thesedonaconference.org). The first of these international principles is that “courts and parties should demonstrate due respect to the Data Protection Laws of any foreign sovereign and the interest of any person who is subject to or benefits from such laws.” Other principles counsel that any conflict between the need for evidence and a foreign country’s privacy or data protection laws should be adjudicated under a standard of good faith and reasonableness, with an eye towards limiting disclosure to minimize the conflict. The Sedona Working Group 6 Report setting forth these international principles also contains, in Appendix B, a useful Model Protective Order for cases involving cross-border e-discovery. It remains to be seen whether the growing chorus of voices becomes loud enough to have any real influence over how the judiciary deals with the gathering and production of ESI in the face of applicable foreign data protection and privacy laws that seek to limit disclosure. European countries treat individual privacy as a fundamental human right — like life or liberty, whereas courts in the United States have for decades placed a premium on information gathering. Giving due respect to foreign privacy and data protection laws pursuant to the doctrine of international comity will inevitably mean that some litigants in the United States will not get access to certain information from abroad that they otherwise would be entitled to pursuant to the Federal Rules of Civil Procedure or state discovery laws. Balancing such competing interests, however, is critical to fostering a global economy, avoiding unnecessary international tension, and maintaining reasonable limits on the gathering and production of ESI. Now, 25 years after Aerospatiale, courts may be ready to listen.

Jeffrey L. Nagel is a Director on the Gibbons E- Discovery Task Force.
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