International eDiscovery: The IT/Legal Disconnect

Multinational corporations and cloud storage across the globe mean that eDiscovery (or eDisclosure depending on your jurisdiction) is a problem that is not going anywhere anytime soon. Governance and eDiscovery experts will be needed to help corporations deal with ever-increasing data volumes that are moving rapidly throughout global networks in the perfect storm of a compliance or eDiscovery nightmare. Of course, while we know there is a problem generally speaking, the larger challenge is to deconstruct the problem into a few discreet pieces. The following is in no way exhaustive of the challenges, but are a few of the ones I see as being the biggest culprits.
In my mind, the greatest challenge associated with international eDiscovery and data governance issues stems from a very basic push-pull between globalization and balkanization when it comes to data. Globalization is a factor from the standpoint that data is moving around the world, quite rapidly I would add, in furtherance of global commerce and information exchanges. Truly the world has never been smaller at any point in human history. But at the same time, there is virtually no consensus internationally when it comes to data privacy issues, regulations regarding retention and destruction of data, and the like. Further complicating matters is the lack of any real international standards of conduct for retrieval of data in one country for use in legal proceedings in another country. Although there is something approaching consensus for EU member nations, the rules are still far from standardized.
The most obvious implication for corporations is the tremendous financial pressures this creates when the issue becomes the focus of a legal investigation or request. Companies can quite literally find themselves between a rock and a hard place when a request for production in the United States can force them to have to process data that resides in another country. When this happens, the obligations to comply with discovery requests can be in direct conflict with the other country's rules concerning privacy.
Of course, the issue is compounded because of the rapid proliferation of cloud storage. We can store data anywhere in the world for easy on demand access; however, with that convenience there is the appurtenant tradeoff that different countries, with different legal and regulatory regimes will require compliance with multiple obligations. That is a challenge that is fraught with peril.

Of course, these are precisely some of the issues the Working Group 6 of the Sedona Conference tried to address in the International Principles Discovery, Disclosure & Data Protection (December 2011). Although it is focused "principally on the relationship between U.S. preservation and discovery obligations and the EU Data Protection Directive . . . [the principles are] intended to apply broadly wherever Data Protection Laws, regardless of national origin, conflict with U.S. preservation and discovery obligations." This is a vital primer for any company or law firm that deals with such issues.
Another complicating factor is the fact that it is possible to have these cross border issues without the problem being readily apparent. As mentioned previously, the widespread use of cloud based storage can actually create a confusing scenario for the less technically-savvy practitioners. For instance, although the data is stored in the cloud, it may be accessed through an interface that could lead someone to believe the data is stored locally. Although technologists might scoff at such an understanding, those less familiar with how mobile apps work actually do think this. The reality is they have no idea where the data is stored and make a faulty assumption that it resides locally. This can have a huge impact if it is learned the data actually resides in another country and is simply accessed through the cloud.
The reality is that in the legal world there remains a great deal of uncertainty and confusion when it comes to technology. The international aspect is just a complicating factor that takes it to the next level. If we were forced to look for the silver lining, perhaps it is that because a large proportion of legal colleagues are facing the same challenges, widespread abuse of asymmetrical knowledge is unlikely.

Author: Drew Lewis

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