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Reducing the Challenges of Cross-Border eDiscovery

Data privacy laws are enacted to protect personal, commercial, and governmental information from unauthorized access, use, and corruption. However, due to the nature of litigation, cross-border eDiscovery often places U.S. organizations in the precarious position of potentially violating foreign privacy laws. Why? Simply put, the U.S. takes a different approach to data privacy than the rest of the world, and many countries view this approach as inadequate. In the U.S., discovery is largely carried out by the litigants and the most frequently utilized methods of discovery are oral depositions, requests for the production of documents, and written interrogatories. Together, these methods are intended to “make a trial less a game of blind man’s bluff and more a fair contest with the basis issues and facts disclosed to the fullest practicable extent.” United States v. Proctor
& Gamble Co., 356 U.S. 677, 682- 83 (1958). c. In civil law countries, however, discovery is conducted by the trial judge, and “private” evidence-taking by the litigants is not permitted. Thus, the scope of discovery in most foreign countries, particularly civil law countries, is much smaller and restricted compared to pretrial U.S. discovery. Many outside the U.S. consequently view U.S. eDiscovery methods as an unrestrained “fishing expedition,” and international eDiscovery can give rise to significant tension.