eDiscovery in International Dispute Resolution: What Experts Want You to Know

I was invited recently to attend the American Bar Association Section of International Law Spring Meeting in Washington DC and was honored by the opportunity to participate on a panel, “International Dispute Resolution – What Does the Evidence Say?”

The panelists included:

• Vinson & Elkins Counsel Adrianne Goins, Esq. as organizer and moderator;
• Clifford Chance Litigation Partner Steven Nickelsburg, and
• United States Department of Justice Jeanne Davidson.

The presentation addressed issues surrounding how discovery and evidence have long been an issue of friction in international litigation and focused on the following components:

28 USC Section 1782

The panel focused on the ability to obtain discovery in international arbitrations or in non-US proceedings generally. One mechanism is 28 U.S.C Section 1782, which in part provides that a US District Court may order an individual or other entity to provide testimony or discovery in a non-US litigation or criminal matter if requested by a foreign or international tribunal.

Courts have discretion to deny Section 1782 applications even if the statutory requirements are satisfied. Five factors the court may use to allow or deny discovery are:

1. Whether the person from whom discovery is sought is a participant in the foreign proceeding.
2. The nature and character of the foreign proceedings.
3. The receptivity of the foreign tribunal to such judicial assistance. Burden rests on party opposing application.
4. Whether the request is an attempt to circumvent foreign discovery restrictions. What does the Procedural Order of your arbitration provide?
5. Whether the request is unduly intrusive or burdensome. Efficiency in arbitration vs. American-style discovery.

The Hague Evidence Convention

The Hague Evidence Convention provides parties involved in international dispute resolution a dual means of obtaining discovery, via Letters of Request or diplomatic officers or commissioners (Articles 1 & 15). Requests must be limited to evidence sought to be used in judicial proceedings commenced or contemplated, and the requests must be for specific documents, depositions, or interrogatories. There are conflicting views in international courts, and even among US Appellate Circuit and District Courts, in how the Hague Evidence Convention may apply.

One famous case with international eDiscovery implications concerning the Hague Evidence Convention is Societe Nationale Industrielle Aerospatiale v United States District Court for the Southern District of Iowa, 482 U.S. 522 (1987). Aerospatiale says essentially that the U.S.’s interest in obtaining evidence for use in litigation outweighs France’s sovereign interest in enforcing its laws. The prospect of civil or criminal sanction is not a primary concern.

Needless to say this case is not a big hit with EU Data Privacy Authorities; in the US, in thirty-three cases since Aeropostale where parties have invoked French statutes blocking discovery, the blocking statute was rejected every time. Most U.S. courts give no deference to the various blocking statues and pay little attention to the Hague Convention as a means of seeking discovery internationally. For obvious reasons, U.S. Courts prefer to rely on Federal Rules of Civil Procedure rather than the Hague Evidence Convention as the rules by which discovery is obtained.

Privacy Laws and Blocking Statues

Once a party makes it through the labyrinth of Sec 1782 or the Hague Evidence Convention, does it provide a “free pass” to collect discovery internationally? The answer is “no”. My job on the panel was to discuss the intricacies of navigating EU Privacy Directives.

The EU privacy regime is currently based on Directive 95/46/EC of The European Parliament and of The Council of 24 October 1995 and its several updates. Under EU Directive 95-46, each country and many localities have a DPA (data privacy authority) governing its interpretation of the directives and controlling how someone seeking discovery can or cannot do it in conformity to an individual EU citizen’s privacy rights. In general, the EU currently has a hodge-podge of regulation and enforcement at the country level and even at the local level.

The person or entity collecting the data must understand:

• What is “personal” and “sensitive personal” information under the applicable EU law.
• An email address or even a name may be considered as “personal” information.
• Corporate email under EU law belongs to the individual, not to the corporation, and no blanket waiver is legal.
• Consents from data custodians (“data subjects”) must be freely given, and protocols may be approved by the local Data Privacy Authority (DPA)
• Custodians have the right to know how their data will be used, who will see or use it, where it is stored, and may also have the right to have it given back, corrected, or destroyed, pretty much anytime, on demand.
• Custodians have the right to know about “onward transfers” to requesting parties in litigation, and how they will use, store, and manage data retention and destruction.

D4 is currently self-certified under the new EU standard for Privacy Shield, a mechanism which provides protection for EU citizens once the data is permitted to get here. But to get here, at least those protections listed above must be provided.

The EU has recently passed the General Data Protection Regulation (GDPR), which harmonize the data privacy regulations among EU nations. GDPR provides greater standardization, tougher requirements and tougher enforcement. GDPR becomes effective in May 2018 and we will be researching and writing more about it as the time approaches.

Learn more about the event panelists:

Adrianne is an experienced litigator, having served as a special assistant to high-level Defense officials, as a member of the staff for a U.S. Senator, and as a national security analyst at the Brookings Institution and the Congressional Research Service and is an active member of Vinson & Elkins’ Pro Bono and Community Outreach committees.

Steve represents clients in litigation and enforcement matters involving the securities laws, the Foreign Corrupt Practices Act, economic sanctions regimes, the Racketeer Influenced and Corrupt Organizations Act (RICO), the False Claims Act, fraud and conspiracy, antitrust and unfair competition law, and environmental law. He has clerked for US Supreme Court Justice Anthony Kennedy and for Chief Judge J. Harvie Wilkinson III, of the Fourth Circuit Court of Appeals

Jeanne has served for more than twenty five years in the National Courts Section of the Commercial Litigation Branch in the Civil Division of the United States Department of Justice, serving in various roles including as Director from 2007 to 2013. She is currently the Director of the Offices of Foreign Litigation and International Legal Assistance as well as the International Trade Field Office in the Commercial Litigation Branch of the Civil Division. As director of the DOJ-OFL she is at any given time supervising foreign lawyers representing the United States in approximately 1,000 lawsuits pending in the courts of over 100 countries. She is past president of the Federal Circuit Bar Association.

Thank you again to Adrianne, Steve and Jeanne, and thank you to the ABA International Law Section for the comraderie, the keynotes (more blogs to come) and the visit to the Newseum– it is a DC Must.