You love the ease of use and intuitiveness of Now Discovery’s Lumix platform for processing the legal review of data, but what if you need to conduct some cross-border ediscovery?

“Sacré Bleu!”

“Ach, nee!” 

“Oddio!”

Right, language may serve up some challenges in cross-border ediscovery processing, but overcoming potential jurisdictional hurdles, as well as variations in Information Governance (IG), could prove to be more challenging.

Common-Law Versus Civil-Law 

The extent of ediscovery results outside of the U.S. may depend in part on whether disclosure is sought from a common-law or civil-law jurisdiction. Common-law countries typically have rules and standards for ediscovery disclosure similar to the U.S., though often much more limited in the extent and scope of allowable data disclosure. For example, to prevent “fishing expeditions” some countries only allow discovery of evidence that distinctly refutes or supports the legal claim.  

Most civil-law countries do not include legal disclosure/discovery as a matter of right in legal proceedings, with any disclosure/discovery often limited to what the court itself seeks during a case. In many such jurisdictions, there are not even any written rules or guidelines that dictate the handling of electronically stored information, which leaves the fate of any discovery requests—ediscovery or otherwise—in the hands of a judge.    

Hague Evidence Convention for Cross-Border eDiscovery

The Hague Evidence Convention may help streamline cross-border ediscovery if it is being sought in one of the 49 other signatory countries; however, even some signatory countries have limits on the types of information that can be requested. For example, France has enacted blocking statutes to prevent disclosure of its citizen’s personal data during U.S. pretrial discovery. 

Letters Rogatory as a Last Resort

Absent the Hague Evidence Convention, U.S. courts can compel ediscovery abroad if the custodian of the foreign-based data is in some way subject to the court’s jurisdiction. If not, then a letters rogatory (formal request from the court) may be the only other means to compel ediscovery.

Information Governance Varies by Country      

Along with resolving cross-border jurisdictional issues, country-by-country variations in IG could impact ediscovery results. While IG has become almost standardized as the linchpin of the Electronic Discovery Reference Model (EDRM) that guides the recovery and discovery of digital data in more than 100 countries, each country’s distinct—and sometimes conflicting—laws, ethical standards, and even cultural differences create widespread variations in the development of IG and its implementation in the eDiscovery process.

The primary legal and ethical drivers of country specific variations in IG involve:

  • Release of personal information
  • Data retention periods
  • Prohibitions on out-of-country personal data transfers
  • Data protection for national security purposes
  • Conflict of interest considerations
  • Proprietary rights

Any and all of these issues can impact how IG is set up in a particular jurisdiction, and what might be included in any ediscovery disposition. In fact, due to conflicting laws and ethical standards, the same ediscovery dataset released from two separate jurisdictions could potentially contain vastly different information.   

With all of this in mind, then, U.S. lawyers and ediscovery professionals working on cross-border legal issues need to be just as aware of potential country-by-country variations in IG, as they do of potential jurisdictional roadblocks and speed bumps.

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