| The United States is, well, different. In America, we | | | | investigate hostile workplace claims between |
| play football, other countries they play soccer (which | | | | employees in Germany is starkly obvious, but outside |
| they call football). Soccer for much of the world is | | | | counsel in litigation my find herself stymied as well. An |
| more than just a game. Fanaticism over the sport is | | | | attorney's first instinct will probably be to put into place |
| feverish, even hysterical. Here, professional soccer | | | | a global litigation hold as is common place with regards |
| leagues struggle for audiences. While the rest of the | | | | to dealing with e-discovery law within the US. Yet, the |
| world thinks it a bit barbaric, Americans have stuck | | | | European Union's Privacy Directives again broaden |
| steadfast with obscure measurements that the rest of | | | | terms U.S. lawyers use commonly, in order to |
| the world long eschewed. We measure in feet and | | | | maximize privacy protection. "Processing" of data |
| inches while they measure in centimeters and meters. | | | | includes any manipulation of data, including steps taken |
| We do things differently in the United States. There's | | | | to protect it from deletion. The Directives also hold that |
| nothing wrong with that. But when it comes to the law, | | | | "processing" may only be performed for a permitted |
| it's important to know that the principle applies there as | | | | purpose, and European Commission opinions have held |
| well. With regard to navigating the privacy legislation, | | | | that U.S. litigation is not a purpose for which processing |
| the landscape in the US is different than that of the | | | | may be performed. |
| rest of the world. Personal data may be protected | | | | Blocking Statues, however, may make things worse |
| form disclosure but, if properly protected, it can be sent | | | | than they seem Such laws can prevent the transfer |
| anywhere in the world. | | | | of any data that is to be used in foreign judicial |
| Those places to which our data can be sent, though, | | | | proceedings - a possibly devastating prohibition. |
| hardly reciprocate in the burgeoning arena of data | | | | Blocking statutes in Switzerland and France carries |
| transfer. The subject is important to study and | | | | criminal sanctions. |
| understand, especially for businesses that move large | | | | In light of such stringent privacy and data protection |
| amounts of data across borders. International data | | | | provisions, how is a company in which collaboration |
| transfer is mired by its incredible complexity: the issue | | | | depends on almost daily international data transfers to |
| is so complex and convoluted that it has been known | | | | function? One method, for data from the European |
| to perplex even the most astute federal judges. They | | | | Union, is enrollment in the U.S. Department of |
| frequently default to U.S. procedural rules, placing the | | | | Commerce Safe Harbor Program. The program |
| non-U.S. company in the unenviable position of dividing | | | | requires the U.S. company to file a Privacy Statement |
| whether to risk criminal sanctions here for violating a | | | | summarizing how it will protect personal data from the |
| U.S. judge's order to produce data outside the U.S., or | | | | E.U., and in which it agrees to adhere to seven |
| to chance a jail sentence for violation of privacy laws | | | | principles of confidentiality and data protection. There |
| in his or her home country. | | | | are also some contractual agreements that can be put |
| Outside of the United States, international data transfer | | | | together to deal with potential problems with regard to |
| laws are governed by regional, local privacy, and data | | | | data transfer. Recently, many companies have |
| protection laws. Multinational businesses must | | | | implemented Binding Corporate Rules, in effect |
| understand the implications such laws have on | | | | corporate codes of conduct for personal data |
| e-discovery. The first order of business is | | | | protection. In Asia, Canada, South America and |
| understanding the distinctions between laws in the | | | | elsewhere, data transfers require compliance with local |
| United States and other nations. For example, when | | | | data protection laws, or permission from or notification |
| we are discussing "personal data" in the US, we are | | | | to local data protection authorities. These are complex |
| referring to such things as financial and medical data. | | | | agreements, and counsel that has a relationship with |
| Within the European Union, such data as email is | | | | counsel that is located in the host country is essential. |
| referred to as "personal data" as well. Each region | | | | Unfortunately, not any of these are a panacea for a |
| within the EU has its own rules as to what can be tied | | | | lawyer who regularly deals with international data |
| directly to a person. | | | | transfer issues. None of these solutions lets personal |
| In the US, data transfer is not so unwieldy. There is little | | | | data be transferred onward. Should the data be |
| in the way of laws regulating the transfer of data over | | | | required for court proceedings, oftentimes, it is required |
| borders. Yet, the E.U. Privacy Directives and enabling | | | | that the attorney obtain permission under the guise of |
| legislation hold that personal data (again, all email), may | | | | local data protection laws. Should counsel fail, however, |
| not be sent outside the European Economic Area (the | | | | they can seek to obtain an Protective order, citing |
| E.U. member states plus Switzerland, Liechtenstein and | | | | "Hobson's Choice", though United States courts have |
| Norway to any country with lesser data protection | | | | tended not to be very sympathetic to such a line of |
| than the E.U. There are only a few nations that meet | | | | argument. One solution, then, is to educate the |
| the EU's standards for data transfer: Canada, | | | | adversary to the issues and negotiate time extensions |
| Switzerland and Argentina. But such laws are not | | | | of other agreements as to the non-U.S. data, perhaps |
| endemic to the European Union. Countries like Chile | | | | in exchange for e-discovery concessions form the |
| and Venezuela have similarly draconian restrictions. | | | | adversary if the litigation is symmetrical. It is up to a |
| The effect of all this upon in-house counsel trying | | | | good attorney to educate a judge who may find these |
| coordinate collaboration across the enterprise, which | | | | laws unwieldy, convoluted, and unfamiliar. It is a must |
| often depends, say, on a U.S. engineer obtaining emails | | | | otherwise a company will have to decide whether to |
| between his German colleagues, or a Human | | | | violate a judge's order or risk jail time and/or sanctions. |
| Resources manager in Kansas faced with a need to | | | | |