Global Privacy Differences and Coming Changes to Cross-Border Discovery
Hudson Legal’s continued interview with Kenneth Rashbaum, experienced litigator and often-published author on the topic of international data privacy laws.
Hudson Legal: It seems that other countries value privacy much more than the United States does. Why do you think that is?
Kenneth Rashbaum: There are cultural, historical, and legal reasons that explain why privacy is much more closely held and ingrained into litigation disclosures worldwide:
- Cultural: Privacy has long been considered a fundamental right in Europe and most of the rest of the world, but in the United States it’s more of a legislative benefit. In many countries their fundamental right to privacy is stated in their constitutions, which is the case in countries like Belgium, Brazil, Chile, and Argentina. In the States, we have privacy law segmented by industry: HIPAA for Healthcare, Gramm-Leach-Bliley for Finance and FERPA for Education, but no overarching legislation to protect privacy.
- Historical: In countries that experienced authoritarian regimes, where information was previously used as a tool to locate dissidents, the pendulum swung back the other way once released from these authoritarian regimes. Some of the strictest privacy laws in the world are in countries such as Germany, France, Spain, and Italy, to name a few.
- Legal: In civil law countries (all of the EU except the UK, plus Mexico, South America countries and most of Asia) the notion of discovery is entirely different from here in the US. Discovery, particularly of personal data, is far more circumscribed.
Hudson Legal: What are your thoughts on how ABA Resolution 103 and the proposed EU Privacy Directives will impact data in respect to cross-border discovery?
Kenneth Rashbaum: This is very much in a state of evolution. There is little circuit or district court law on cross-border discovery. However, there is a growing recognition for the need to accommodate the interests of multinational corporations.
It’s my hope that the ABA resolution and the publicity around the proposed EU privacy directive revisions will change that. Some judges with whom I have spoken recently are realizing that you may place litigants in peril if you blindly order compliance with US-style discovery in short time periods. Many judges are now willing to listen and consider these issues, as long as they are brought up early. If litigants don’t tell the court about these issues until the eve of trial, or the end of a discovery compliance period, the court will be far less willing to accommodate them. If they are brought up in a discovery conference, or even preferably before-hand in a Rule 26(f) conference, then perhaps an agreement can be reached on discovery time-frames and procedures.
Interested in Learning More?
Download the Quick Reference Guide, Cross-Border eDiscovery: Preparing for Impending Changes: Here you’ll find advice for multinational corporations on data preservation and governance strategies, data preservation considerations, and other important coming changes to note.