Question: eDiscovery has changed litigation, but how do these changes affect international firms?
Matthew Knouff: eDiscovery can be particularly tricky in cases involving multi-national firms. American and European laws differ with respect to privacy constraints and document discovery. This difference can be extremely pronounced with regards to preservation. Counsel must ask herself, does the attempt to satisfy the U.S. common law duty to preserve by implementing a legal hold itself cause a violation of privacy laws outside the U.S. to which compliance is equally expected? In the United States, it is not atypical for any communication generated by an employee while at work to be viewed as belonging to the corporation. Combine this concept of erring on the side of corporate ownership with the broad scope of discovery in the U.S., and you end up collecting extremely personal information during litigation discovery. Now there are checks and balances to fight against the complete loss of privacy in the workplace, but this is a stark contrast from many corporate environments outside the U.S. Within the E.U., personal data may only be processed in pursuit of a purpose allowed by the European Directive 95/46/EC. The Directive is, in effect, a regulation of exclusion (i.e., the activity is prohibited, except where it is expressly permitted). Litigation in the U.S. is not necessarily considered a legitimate purpose for processing pursuant to the Directive. While the Directive states that the processing of personal data may be undertaken where necessary to fulfill a legal obligation, it is not definitive whether an obligation arising out of U.S. jurisdictions may qualify for this derogation under the prevailing case law. The burden is on counsel to tread lightly when addressing such cross-border eDiscovery issues.
Question: Are there any tools to help with eDiscovery involving data produced in foreign countries?
Matthew Knouff: My company, Complete Discovery Source, Inc. (CDS), just launched a product that takes some of the stress out of international eDiscovery. CDS Digital Customs is a portable tool that can identify, filter, and redact documents to exclude personal data and promote compliance with the E.U. Directive or similar legal frameworks. Various features can be customized for a given country and/or language, and CDS can deploy it within hours of a collection request. For more information on our Digital Customs offering, please visit www.globenewswire.com/newsroom/news.html?d=252441.