By Ken Rashbaum, Esq., Director, Fios Consulting, Fios, Inc.

Like fifth graders at their first dance, civil law jurisdictions and common law countries have moved hesitantly, and somewhat reluctantly, closer together in recognition of the need to close the gaps which inhibit the flow of data for business purposes and adversarial proceedings. Yes, the girls and boys at this dance, left to their own devices, would stand at opposite sides of the gym and stare, but global commerce, like the supervising teacher, is pushing the sides toward each other.

Discussing the outsourcing of radiology services, Thomas L. Friedman wrote in his 2005 best-selling book The World is Flat, "the advantage is that it is daytime in Australia or India when it is nighttime here – so after-hours coverage becomes more readily done by shipping the images across the globe."¹ The ensuing four years since publication of Friedman’s book have seen an exponential increase in globalization of business; indeed, most sizable U.S. corporations do business or have facilities outside U.S. borders, and, similarly, most large non-U.S. enterprises do business or have offices within the U.S. Further, we now "exchange information instantaneously with a myriad of portable and wireless devices without regard to borders. . . . And in this 'information age,' where the primary evidence of our global conduct is almost solely electronic, litigation and regulatory investigations are a fertile ground for cross-border e-discovery."²

Yet profound differences remain between the U.S. and its counterparts on how to view this flow of information. The first distinction is the perspective on privacy. The U.S. approach to information privacy is segmented, regulated by category of information (e.g., medical, financial) and industry (healthcare, banking), and implemented by legislation and court rulings. Outside the U.S., privacy is considered a fundamental right. Similarly, the U.S. approach to expansive pre-trial discovery is anathema in the civil law jurisdictions, where courts closely supervise "disclosure," and one need only provide data or documents which will support one's case.

A white paper and a working document from the U.S. and Europe may go a long way toward an understanding which could, hopefully, reduce the judicial gridlock in which U.S. courts demand electronic evidence from abroad and non-U.S. judicial authorities decline to provide it, citing privacy and other concerns. The Sedona Conference® in 2008 posted for public comment a white paper entitled The Sedona Conference® Framework for Analysis of Cross-Border Discovery Conflicts: A Practical Guide to Navigating the Competing Currents of International Data Privacy & e-Discovery.³ The paper analyzes current conflicts between the civil and common-law countries, seeks "to help navigate the turbulent currents of cross-border conflicts between data privacy and discovery, informed by country-specific data privacy, discovery and disclosure rules and practices, and ends its analysis with potential ways in which understanding may be reached."⁴

The Sedona Conference® paper was recognized when it was cited approvingly by the Article 29 Working Party of the European Commission in its Working Document 1/200 on pre-trial discovery for cross border civil litigation.⁵ The working document takes a somewhat less optimistic perspective than The Sedona Conference® document. Like The Sedona Conference® Framework, the Working Document begins by acknowledging the "tension between the disclosure obligations under U.S. litigation or regulatory rules and the application of the data protection requirements of the E.U."⁶ The document also notes "the need for reconciling the requirements of the U.S. litigation rules and the E.U. data protection provisions." Yet, after this statement of an intent to harmonize the jurisdictions, the document pulls away by calling into question the notion of European application of a legal hold (which many counsel view as a well-established requirement), stating that there is "difficulty where the information is required for additional pending litigation or where future litigation is reasonably foreseeable. The mere unsubstantiated possibility that an action may be brought before the U.S. courts is not sufficient."

The Sedona Conference® Working Group 6, whose work resulted in the Framework document, will hold its annual meeting in Barcelona on June 10-11. Representatives of the European Commission and data protection officials are scheduled to attend and speak. While no official response from either entity will emerge from that meeting, it is anticipated that the ensuing dialogue will make some headway toward reconciling the disparate notions of discovery and privacy that still impede litigation, regulatory proceedings and global business processes.

1. Friedman, The World Is Flat (Farrar, 2005) at 16.
2. The Sedona Conference® Framework for Analysis of Cross-Border Conflicts: A Practical Guide to Navigating the Competing Currents of International Data Privacy & e-Discovery (2008) at 1.
3. Public Comment version available at http://www.thesedonaconference.org. The author is a Co-Editor-in-Chief of the Paper.
4. Id. at 2.
5. Available at http://ec.europa.eu/justice_home/fsj/privacy/workinggroup/wpdocs/2009_en.htm.
6. Id. at 1.