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.
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By: Brett Tarr