Privacy and Security TidBits

U.S. Ediscovery and Cross-Border Ediscovery 101 for Civil Law Practitioners

In a speech given at the 3rd Annual European Data Protection and Privacy Conference, in Brussels on 12/4/12, Viviane Reding addressed the reasons for the global interest in the European Commission’s proposed reforms to the EU Data Protection Regime:

“Why is there so much interest in our data protection reform?

…, because data protection is a global challenge. In a world where borders are increasingly blurred, and where data moves at the speed of light, the Union’s rules matter beyond its borders. Our debate is a precursor of future debates in other parts of the world. Many countries have a new generation of data protection laws in the making, in Asia, in Latin America, in Africa. In the U.S., the voices of reform are growing louder. All across the world, people are realising that good data protection rules are good for growth. This is at the heart of our own proposals here in Europe.”

But, while the EU may be leading the global data protection reform movement, there is no doubt in my mind that the US remains the leader in global data collection technologies.

The U.S. Ediscovery industry originated from the very broad Common Law requirement of “Disclosure” or “Discovery” in civil litigation. As digital data became the overwhelming source of data in most companies and organisations, “discovery” became “e-discovery”, the “e” standing for “electronic”. This obligation to disclose is practically non-existant in Civil Law systems.

According to a recent report published by Transparency Market Research, the global e-discovery market was worth USD 3.6 billion in 2010 and is expected to reach USD 9.9 billion in 2017, growing at a CAGR of 15.4% from 2010 to 2017. In the overall global market, the U.S. is expected to maintain its lead position in terms of revenue with 73% of global e-discovery market share in 2017. Another report, published by Research and Markets,  forecasts the Global eDiscovery market to grow at a CAGR of 15.56 % over the period 2011-2015.

The globalization of trade and data flows have lead to an increase in international litigation, with, in Common Law based jurisdictions, the accompanying need for global data collections to satisfy the Common Law “Duty to Disclose” in civil litigation.

Just as the EU Data Protection reform has caused undeniable ripple effects worldwide, the U.S. Edsicovery boom has had an impact on the global practice of law.

For example, at the recent LawTech Europe Congress 2012  held in Prague, CZ, on 11/12/12, I was impressed by the overwhelming interest expressed in U.S. based Ediscovery technologies for application in local internal and Government investigations in bribery, corruption and fraud allegations within EU companies, and, to a lesser extent, for application in cross-border ediscovery procedures.

It is in the particular case of cross-border ediscovery, conducted in the context of U.S. civil litigation, that the clashes between local, EU-style data protection regimes and the need for transfer of data to the U.S., are the most acute and problematic.

In order to solve this very complex problem, I believe, in line with the Sedona Conference‘s philosophy, that dialogue is of the utmost importance. In the case of U.S. cross-border ediscovery in the EU, this dialogue takes on the additional dimension of a dialogue between two vasltly different legal systems: the Common Law system of the U.S. and the Civil Law system of the majority of EU member states. These different legal systems are cause for many misunderstandings between EU and US legal practitioners. On the one hand, U.S. attorneys and judges need to become more familiar with the EU Data Protection regime, and on the other hand, the EU member states’ attorneys, in-house counsel and Data Protection Authorities (DPAs) need to become more familiar with U.S. ediscovery obligations.

In the past, I have explained basic EU Data Protection concepts to U.S. legal practitioners.

At the  LawTech Europe Congress 2012, I attempted to explain U.S. Ediscovery principles to an audience, consisting mainly of Civil Law practitoners.

The presentation can be heard here:




 The Sedona Conference Working Group 6, of which I am an active member, has worked relentlessly to achieve a dialogue between the EU Data Protection Authorities and US attorneys, in-house counsel and Federal Judges. It has published The Sedona Conference International Principles on Discovery, Disclosure and Data Protection in December 2011, which is now open for public comment. The Principles were very well received by the Article 29 Working Party, the EU Data Protection Authorities’ Advisory Body, presided over by Jacob Kohnstamm.

It is the hope of The Sedona Conference that its International Principles will become accepted as best practices, as a code of conduct by U.S. litigants and Judges, as well as by EU member states’ DPAs.

To paraphrase Viviane Reding: ..because litigation is a global challenge. In a world where borders are increasingly blurred, and where data moves at the speed of light, U.S. ediscovery rules matter beyond their borders.