Reducing the Challenges of Cross-Border eDiscovery
When eDiscovery involves data from more than one country, it increases the complexity of the task at hand. The proliferation of electronic data and complexity in international privacy laws only add to the burden and cost of litigation. Given the increased legal, regulatory, and reputational complexity and risk, organizations need to be prepared to take a proactive approach to cross-border eDiscovery.
The biggest challenge we see in cross-border eDiscovery is a lack of understanding of data privacy laws in different jurisdictions. Due to the nature of litigation, cross-border eDiscovery often places U.S. corporations in the tumultuous position of potentially violating foreign privacy laws. Broadly speaking, the U.S takes a different and less restrained approach to data privacy compared to the rest of the world and many countries view this approach as inadequate. Also the scope of eDiscovery in the U.S is wider and less restricted compared to many civil law countries. Many jurisdictions outside the U.S. consequently view this much like an unrestrained “fishing expedition,” resulting in significant tension.
Understanding the different needs and nuances of local privacy standards is important to ensure litigation success. An organization needs not only to ensure compliance with international data privacy laws but also the cultural norms around data privacy and eDiscovery. This can present the largest challenge for many corporations from an operational point of view – many companies simply do not have the bandwidth and resources to manage cross-border eDiscovery as efficiently as possible. The size, structure of company, and industry where a company is involved in are also factors to consider when managing eDiscovery in multiple jurisdictions.
How should corporations deal with discovery in jurisdictions outside of the United States? A good starting point is to consider the lifecycle of the relevant data and the different aspects of the eDiscovery process - this should help corporations identify technical, administrative, security and privacy controls that apply well to cross-border data production and transfer challenges. Read up on best practices and consider implementing an effective, long term information governance program, identifying effective mitigation techniques, employing appropriate advisors and technology to help improve efficiency and manage costs. Continuous validation combined with strong incident response will also empower organizations to meet the challenge of cross-border eDiscovery. Stay alert and prepared. Cross-border litigation matters are inevitable as we move towards an increasingly globalized economy.
To read more about best practices to reduce cost and risk in cross-border eDiscovery, download our whitepaper.