The challenges of cross-border discovery.

PositionE-DISCOVERY - Report

Global organizations are increasingly finding themselves in a difficult position in their attempts to address cross-border discovery.

If they comply with U.S. data preservation obligations, they could violate the rights of employees, customers, or other individuals under EU and other countries' international data protection laws. But, if they abide by individual countries' data protection laws, they risk potentially devastating spoliation sanctions in U.S. courts, explained e-discovery experts Jeane Thomas and Brad Davis in a recent Corporate Counsel article.

Bridging that gap is challenging, if not impossible. Thomas and Davis offered some practical steps counsel could take before and after litigation to minimize the conflict.

* Retain records only as long as required by law or business necessity. This will limit the volume of personal data that may be subject to preservation requirements.

* Institute a litigation-readiness program.

* Educate foreign business units with the concept and requirements of U.S. discovery.

* Foster transparency. "Advise employees through policies and specific notices that the company may be required to preserve and collect work-related email and other data containing personal information in the event of U.S. litigation or an investigation."

* Ask for consent. It may not be considered sufficient under foreign law, but explaining to affected employees why you need access to their data and what you intend to do with it and asking for their written consent "demonstrates...

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