On November 12, 2009, an all-star cast of international e-discovery and data privacy experts presented a panel on “Clash of Laws and Cultures: Cross Border E-Discovery and International Data Management” at the Six Annual Georgetown Advanced E-Discovery Institute:  Identifying Today’s Problems & Tomorrow’s Solutions.
 
Panelists from the United States, France and Switzerland, representing the perspectives of in-house counsel, local outside counsel in an E.U. country, as well as outside complex litigation and privacy law counsel from the United States explained why civil litigants remain between a rock and a hard place in managing the risk of cross-border transfers of personal data in the context of international litigation. 

The panel was moderated by James Daley, Esq. of Daley & Fey LLP, a Georgetown E-Discovery Institute Advisory Board Member and Co-Chair of The Sedona Conference® International Working Group 6.  The distinguished panel included:

• Alex Blumrosen, Esq. of Bernard-Hertz-Bejot of Paris, France
• Kenneth Rashbaum. Esq. of Rashbaum & Associates, New York
• Lisa Sotto, Esq. of Hunton & Williams, Washington, DC
• Christian Zeunert, Vice President of Swiss Re, Zurich, Switzerland

The panel explained how the concept of “personal data” differs between the United States and Europe, and the differing notions of privacy and discovery between common law and civil law countries. The panel also explained how EU Data Protection and Privacy regulations, as well as country-specific “blocking statutes” restrict cross-border transfers of data relating to foreign litigation.
 
Ms. Sotto explained the historical roots of differing concepts of privacy between the EU and United States, pointing out the surveillance society of the Gestapo in Germany led to the recognition of personal data privacy as a fundamental human right in Europe and elsewhere.

Mr. Rashbaum articulated the differing standards of discovery, and even differing expectations of civil justice between the United States and much of Europe.  Rashbaum also highlighted how U.S. Courts, including the U.S. Supreme Court in the Aerospatiale decision have approached these conflicting demands.  Namely, U.S. courts have enforced U.S. style discovery even where one or more parties are subject to foreign data protection regulations and blocking statutes. 

Mr. Zeunert explained the importance of a corporate policy and protocol for dealing with cross-border discovery situations.  Zeunert noted that while it is often a “risk management” calculation, there are nevertheless very important, practical steps that can be taken to mitigate risk in this arena.

A highlight of the panel was the first-person perspective of Alex Blumrosen, whose firm was involved in aspects of the infamous In Re Christopher X case (PDF file in English), in which a French attorney was fined €10,000 ($15,000) for violation of the French blocking statute by seeking information from a French citizen relating to a lawsuit filed in the United States.

Another special contribution of the panel was an update regarding the EU Article 29 Working Party Document WP 158 and the recent Declaration of the French Data Protection Authority (CNIL) in response to the efforts to resolve the current “Catch 22” of cross-border discovery.

About M. James Daley

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