The Sedona Conference (TSC) and its Working Group 6 on International Electronic Information Management, Discovery, and Disclosure recently published their Commentary on Proportionality in Cross-Border Discovery (Commentary) for public comment. The document looks at issues of proportionality and comity through the lens of cross-border discovery and offers insight on how legal teams might navigate these complex issues while maintaining ethical and compliance standards, as well as showing respect to foreign law.

As more countries have continued to raise their standards for data protection with more stringent legislation, cross-border discovery has become a greater challenge than ever before. The Commentary seeks to address these new challenges by looking at those non-U.S. data laws and the jurisdictions they impact, highlighting current issues with comity and proportionality analysis, and offering recommendations on how to address those issues.

The EU’s General Data Protection Regulation (GDPR) and Cross-Border Discovery

The GDPR is perhaps the most significant piece of data protection legislation to consider when it comes to cross-border discovery, as the comprehensive protections it provides apply to all 31 member states of the European Economic Area (EEA), and the language of its laws have served as a framework for various similar foreign data protection laws.

Here are some key takeaways from the Commentary’s analysis of the GDPR and cross-border discovery:

• The European Commission states that, in cases of cross-border discovery, personal data transfers are only permissible if the “country, territory, or organisation has ensured an adequate level of protection that must be essentially equivalent to that guaranteed within the EU by the GDPR.”

• Examples of some instances where an exemption to this ruling may be warranted include, “when it is necessary for the performance of a contract, for reasons of public interest, or for the ‘establishment, exercise or defence of legal claims’, provided the data subject consents.”

• The European Data Protection Board ruled that a U.S. court order alone “does not serve as an applicable legal ground for the transfer of personal data to the U.S.” Organisations who follow such an order without meeting GDPR standards may face fines from the European data protection authorities.

That last takeaway highlights one of the more significant challenges of cross-border discovery analysed in the Commentary. Should an organisation fail to provide the data requested by a U.S. court order, it may result in sanctions, essentially leaving the organisation to choose between those sanctions or fines from European authorities.

The Commentary goes on to cover some other notable data protection laws from across the globe through the lens of cross-border discovery. These laws are too numerous to mention in brief, but the general ideas and challenges presented are largely highlighted in the section regarding the GDPR.

Comity and Cross-Border Discovery

Comity, or the practice of one jurisdiction showing respect to the judicial decisions and laws of another, is a significant consideration when it comes to cross-border discovery. This practice is not based on any legal obligation, but rather a sense of mutual respect.

However, as detailed in the Commentary, U.S. judicial authorities are beholden to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Convention), and as such the U.S. Supreme Court has “recognised the need for ‘due respect’ for foreign laws and set out certain factors to consider in comity analysis” regarding cross-border discovery.

Those factors were developed using the comity analysis outlined in Société Nationale Industrielle Aérospatiale v. U.S. District Court for the Southern District of Iowa (Aérospatiale). They include the following:

• Importance: The evidence being sought should have the potential to make a decisive impact on the outcome of litigation and should not be “cumulative of existing evidence.”

• Specificity of requests: The Supreme Court discourages generalised searches for information which, if disclosed, would violate foreign law.

• Location of the evidence: Comity standards are higher when the evidence to be disclosed and those producing that evidence are located in a foreign country.

• Availability of alternative means: The doctrine of comity should be upheld whenever “the information sought can easily be obtained elsewhere."

• National interest: The interests of those protected under the foreign data protection law should hold the highest importance in a comity analysis for cross-border discovery.

• Hardship: If a U.S. court order poses a significant risk of criminal prosecution for a foreign national in their home country, it “constitutes a ‘weight excuse’ for nonproduction.”

• Likelihood of compliance: If a discovery order would likely have no practical effect (e.g. it is unlikely to be enforceable) then compliance should not be required.

• Existence of a protective order: When information covered under foreign data protection laws is protected from further disclosure by a protective order, discovery requests are more likely to be granted.

These comity analysis factors offer some useful insight into how legal professionals might strike a balance between respecting foreign data protection laws and pursuing cross-border discovery. However, it’s important to note that the U.S. Supreme Court has stated that the list is not an exhaustive one, and as such it’s critical for litigators to broaden the scope of their analysis during this process.

Confusion with U.S. Proportionality Rules and Cross-Border Discovery

The Commentary highlights the wide variance with which U.S. courts address issues of proportionality analysis in cross-border discovery, positing that the lack of a unified approach is one of the major issues facing legal teams handling international cases that run up against foreign data protection laws. The document goes on to highlight some of these varying approaches and offer recommendations to U.S. courts looking to address the issues they present.

Recommended Process for Cross-Border Proportionality Analysis

• Courts should “undertake a serial approach to considering scope in cross-border discovery” prior to any comity analysis, as it may be the case that “such discovery does not even meet the definition of discoverable evidence.”

• Scoping inquiries in issues of cross-border discovery “should always begin with a Rule 26(b) (1) analysis of whether the information sought is nonprivileged, relevant, and proportional.” Rule 26(b) (1) refers to the discovery scope and limits detailed in the Federal Rules of Civil Procedure.

• Material discoverable under Rule 26(b) (1) but subject to an ongoing transfer restriction should not undergo comity analysis before parties explore transfer under the Hague Convention.

• If transfer under the Hague Convention is not agreed upon, the Aérospatiale comity analysis framework should be considered.

These few bullet points offer only a light overview of the recommendations laid out in the Commentary, but they do show a clear process by which the problematic variance in U.S. court approaches to proportionality analysis may be approached. The document (which is free to download) also offers a flowchart of these recommendations that provide an even clearer view of the process.

Conclusion

Universal data protection laws are incredibly important in the age of information, and the legal bodies who enact them should be lauded for providing their constituents with these essential rights, but there’s no doubt that they create some significant challenges for legal teams tasked with handling international cases. The Commentary offers an extensive look at those challenges and provides some useful recommendations for addressing them.