The Ediscovery Olympics: E-evidence Best Practices around the World
Citius, Altuis, Fortuis – “Faster, Higher, Stronger” – Right now over ten thousand athletes from two hundred countries are competing in London to see who can take the Olympic Motto to its fullest potential. When you sit down to watch the events, remember that behind every flag is a unique legal system comprised of diverse privacy laws and ediscovery rubrics. As these laws become increasingly intertwined, legal professionals--like athletes--must constantly push themselves to become faster, higher, and stronger to manage international ediscovery in the digital age.
A central theme in American discovery is that the search for truth in litigation outweighs individual privacy concerns, with the exception of personally identifiable information. The 2006 amendments to the Federal Rules of Civil Procedure are the heart ediscovery, namely Federal Rules 26 and 34 which define electronically stored information (ESI) as a discoverable source of information.
Guided by few appellate decisions, US district court and magistrate judges are the architects behind an expansive body of ediscovery case law. Proportionality (barring unduly burdensome ESI production and preservation) and cooperation (mandating party-to-party ESI discourse early) are defining facets of American ediscovery. In 2012, courts have expressed unrivaled legal-technological proficiency by tackling several complex ediscovery issues: taxation of ediscovery costs,1 the role of proportionality in preservation,2 and marrying smart technology with document processing and review.3
England and Wales
The shifting tides of ediscovery impact both sides of the Atlantic. In the UK, Civil Procedure Rule 31 governs disclosure. Its counterpart, Practice Direction 31B, is the primary source for coping with issues like the preservation of ESI, defining a “reasonable search,” and assessing the level of party communication required before the case management conference.
The UK takes a fundamentally different approach to spoliation sanctions than the US. While the destruction of relevant ESI is barred under English law (as made clear by the 2012 case West African Gas Pipeline Co. Ltd. v. Willbros Global Holdings Inc.), 4 litigants are less concerned over the threat of sanctions than counsel in the US, where various levels of culpability (as low as negligence in some jurisdictions) are tied to American hierarchies of differing sanctions.
The European Union
The EU Data Protection Directive 95/46/EC (“the Directive”) mandates signatory countries to implement laws restricting the processing of “personal data”—information “relating to an identified or identifiable” person. Moreover, the Directive bars the transfer of personal data to non-EU states unless the country provides for “adequate protection” of personal data and marks a significant detour from the American approach to data protection. 5
Geared towards creating a “stronger and more coherent data protection framework,” the European Commission unveiled a new Draft Directive and Regulation on Data Protection on January 25th 2012. Set to take effect in 2014, the new data protection regime bolsters the rights of data subjects, imposes heightened obligations on organizations and strengthens enforcement measures. This rubric, combined with many civil law systems, provides for minimal discovery of ESI in EU litigation.
Throughout the Canadian provinces, the 2008 Sedona Conference® Publication, The Sedona Canada Principles, has provided an impetus for developing ediscovery rulemaking. For example, the Ontario Rules of Civil Procedure make an explicit call for cooperation and a meet and confer conference when discussing discoverability of electronic data. Further, they require counsel to consult with The Sedona Canada Principles.
However, following the footprints of the EU, Canada has taken a rigorous approach to data protection regulation at the legislative level. Private sector data use is controlled by the Personal information Protection and Electronic Documents Act, a federal privacy law designed to “support and promote electronic commerce by protecting personal information that is collected, used or disclosed.”
Ediscovery law in APAC is evolving at the speed of light. Some countries have passed ediscovery guidelines (e.g., Singapore); however, many countries, like South Korea and Japan, are still considering implementing ediscovery laws. In the APAC region, ediscovery largely impacts international companies with US-based litigation and antitrust concerns. Local counsel and local service providers can provide immense value when attempting to successfully collect data in the region, while navigating the vast legal system differences.
As the e-commerce market continues to blast through geographic boundaries, watch for countries to continue to parse their existing rules against the demands of litigation, develop laws that cushion these changes, and shift the burden of knowledge to attorneys engaging in international data discovery. It is only a matter of time before a case on your docket, in your firm or on your desk involves multinational discovery laws. Whether you’re watching the London games for the sports, the tradition, or the pageantry, take a second to think about the diverse network of laws behind the competition.1 See Race Tires America, Inc. v. Hoosier Racing Tire Corp., 2012 WL 887593 (3d Cir. Mar. 16, 2012).
2 See Pippins v. KPMG LLP, 2012 WL 37032 (S.D.N.Y. Feb. 3, 2012).
3 See Da Silva Moore, et. al., v. Publicis Groupe & MSL Group, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012).
4  EWHC 396 (awarding over £135,000 in costs for a party’s failure to provide a proper disclosure).
5 American data protection law involves a concoction of legislation (e.g., the Fair Credit Reporting Act), self-regulation, and industry regulation.