International,E-discovery,Comp business, insurance International E-discovery Compliance- Privacy First

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"Soccer" is "football" everywhere else (except Canada), and it's the national sport in most places. In fact, it's the national sport, almost an obsession, in most of the world In America, most soccer teams can barely fill out a stadium. Distances here are measured in inches, feet, yards and miles; the non-English speaking world, except our forbears in the U.K., measure in centimeters and kilometers. Similarly, in the U.S. privacy is a legislated benefit, segmented by industry. But if privacy is something you understand, you will be able to send personal data anywhere.But simply discussing the places data can go is hardly even breaching the surface of this incredibly large subject. This has a profound effect on Multinational corporation data transfers between facilities across borders. This also creates layers of complexity in e-discovery compliance: even many U.S. federal judges appear to be surprised whenever issues of international e-discovery arise. Oftentimes, they side with United States style procedural rules. Violating these orders could end in criminal sanctions, or even jail time. So, as you can imagine, companies are forced into the terrible position of having to decide whether to violate the terms of these rulings and risk sanctions or jail time.International data transfers outside the U.S. are governed by regional and local privacy and data protection laws, and multinational businesses must be aware of how these provisions impact e-discovery compliance. First things first. Before a company deals with the issue, one must understand the distinctions between the laws within the US and the laws that exist outside of the United States. Let me explain. When we discuss issues such as "personal data" within the United States of America, we are really referring to just medical and financial data. Within the European Union, for example all email is "personal data," because that term is defined in the E.U. Complicating matters further, while such things as personal data are broadly defined within the EU, each region within the EU has its own definitions of what is considered personal and how that data can be dealt with.The U.S. has little in the way of statutes preventing even U.S. "personal data" outside national borders. Yet, the E.U. Privacy Directives and enabling legislation hold that personal data (again, all email), may not be sent outside the European Economic Area (the E.U. member states plus Switzerland, Liechtenstein and Norway to any country with lesser data protection than the E.U. In fact Canada, Switzzerland and Argentina are the only countries that meet the European Union's compliance standards And this scheme is not limited to the E.U.; Chile and Venezuela have similar restrictions, and Japan requires consent of the data subject for email to be sent outside the country.Counsel attempting to put together a collaborative across enterprise, which will oftentimes depend on individuals sending emails across borders, can be a perplexing problem. When she is on notice of litigation, her first instinct will be to implement a global litigation hold, because in U.S. litigation e-discovery compliance demands it in order to preserve potentially relevant evidence. Yet, the European Union's Privacy Directives again broaden terms U.S. lawyers use commonly, in order to maximize privacy protection. "Processing" of data includes any manipulation of data, including steps taken to protect it from deletion. The Directives also hold that "processing" may only be performed for a permitted purpose, and European Commission opinions have held that U.S. litigation is not a purpose for which processing may be performed.And in some countries, as a song popular in the late Eighties put it, it's even worse than it appears, because they have "Blocking Statutes." These provisions proscribe export any data, personal or not, which is to be used in a foreign judicial proceeding. Violating such statues in places like Switzerland can lead to devastating criminal sanctions.With such incredibly draconian data protection laws, how could a corporation that does collaborative work deal with the incredible amounts of data that will be getting transferred on a daily basis? Solutions are pretty simple. Although they are elusive if you didn't realize these things exist. For eample, you could enroll in the US Dept. of Commerce's "Safe Harbor Program. The program requires the U.S. company to file a Privacy Statement summarizing how it will protect personal data from the E.U., and in which it agrees to adhere to seven principles of confidentiality and data protection. Alternatively, the company may enter into a Data Transfer Agreement with its European facilities comprising Model Contract Clauses, approved by all member states. Recently, many companies have implemented Binding Corporate Rules, in effect corporate codes of conduct for personal data protection. In Asia, Canada, South America and elsewhere, data transfers require compliance with local data protection laws, or permission from or notification to local data protection authorities. It is incredibly important to hire counsel to prepare agreements, and that counsel must have a relationship with counsel in the host country.It's too bad that an attorney who regularly deals with international e-discovery issues has little in the way of recourse. These methods do not allow the onward transfer of personal data. Unfortunately, for those who are faced with the prospect of obtaining private information for proceedings, it is oftentimes required that that information be obtained under the laws of local protection authorities. Failing both, counsel may seek a Protective Order, citing the "Hobson's Choice" of violating a US. order or local privacy laws. U.S. courts, though, have shown little sympathy for this plight. One solution, then, is to educate the adversary to the issues and negotiate time extensions of other agreements as to the non-U.S. data, perhaps in exchange for e-discovery concessions form the adversary if the litigation is symmetrical. Failing that, education of the judge as to these stringent privacy and data protection provisions is required so that the client company won't have to decide whose law to violate. Article Tags: Data Protection Laws, International E-discovery, E-discovery Compliance, Personal Data, Data Transfers, United States, Data Protection, Protection Laws