You could call the United States the epicenter of litigation. It’s an unfortunate, but inescapable, reality that our markets and business cultures drive a preponderance of international business litigation, so much so that we’re the world leader by a mile. The challenge for European and Asian corporations lies in the fact that many have U.S. headquarters or do business with companies here, which is when e-discovery becomes complex due to their national, local, or other pertinent data-privacy laws.
There are dramatic variations in data-privacy laws and requirements across countries, domains, and jurisdictions. For example, in Germany the requirements for collecting employee e-mail and electronic documents within one company may be completely different than those for the company next door, as those requirements are determined by each corporation’s works council.
In-country
Collections
Many countries, works councils, and jurisdictions now
require that the collection of electronically stored information (ESI) be done
from within the borders of the country where that data is stored and its
employees work. We have seen inside counsel in Mexican and Brazilian companies
who don’t want their ESI to leave Mexico or Brazil. We often work and sit on
panels—such as the upcoming
Overcoming EU Data Privacy Challenges in Ediscovery at the Association for
Corporate Counsel Annual Meeting in Los Angeles—with Dominic Jaar of KPMG-Canada to
discuss this very topic.
An expert on Safe Harbor and cross-border e-discovery
challenges, Jaar and his team help many European companies with their
e-discovery by making use of Canada’s status as a virtual “data Switzerland” or
a type of “discovery hub” for Safe Harbor compliance because its data-privacy
laws are much closer to those of the EU than those of the U.S. The panel will
also include Judge Shira Scheindlin from the U.S. District Court, S.D.N.Y., and
David Goodis from the Office of the Information and Privacy Commissioner of
Ontario.
Situated in the heart of a safe zone for European data, KPMG
makes use of EnCase® eDiscovery to speed
and simplify the collection and review of data from around the globe. EnCase
eDiscovery has a unique “hybrid” architecture, which allows U.S. litigants to
collect their European employees’ data remotely from Canada, cull that data in
Canada, and then take advantage of the EnCase eDiscovery Review private cloud capabilities
to review the case and its relevant ESI collaboratively from various points
around the globe.
Collect, Cull, then
Launch Private-cloud Review
In fact, any corporation can perform collections “in
country” to meet data-privacy regulations with EnCase eDiscovery. Many of our
customers collect inside their national boundaries and then put the small
amount that must be reviewed into a private cloud. Overall, these capabilities
minimize the amount of data for which they must gain employees’ consent before
sending to the U.S. for processing and analysis.
How do you perform
international e-discovery collection? We welcome notes on your own best
practices in the Comments section below.
Chris Kruse is the Vice President, E-Discovery at Guidance Software.
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