Litigation and trials are handled in the United States in a manner that is significantly different from that which prevails in other countries. While broad discovery is available here, the gathering and use of evidence is much more limited abroad. For years, there have been disputes between US litigants and the foreign parties who were requested to produce information and documents for use in US courts. While the 1970 Hague Convention on the Taking of Evidence in Civil and Commercial Matters has provided rules for the regulated taking of evidence, there are still many barriers to the gathering of evidence from foreign parties. One of them is the data protection laws of many countries, especially those in the European Union and the European Economic Area.
The European Union Data Protection Authorities believe that individuals’ right to ensure that their personal data are not collected without their knowledge and are not misused be balanced against an entity’s right to provide documents identified in a discovery request. Among other things, individuals should be properly notified, the collection of information should be limited to that which is strictly necessary, and the documents or information should be protected at all times by adequate security measures in accordance with the requirements of the applicable national data protection laws.
Francoise Gilbert recently discussed these issues at the meeting of the American Bar Association Section on Dispute Resolution. The handout of this presentation can be accessed by clicking here.