International Data Protection and Discovery, Part 2

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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.
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International Data Protection and eDiscovery

Exploring Impending Changes in Global Privacy Laws and the Implications for Multinational Corporations

Global businesses have complicated operational considerations. From technology management and legal implications to human resources conduct and accounting procedures, cultural differences, laws and regulations directly impact the way they conduct themselves in the global marketplace. At Hudson Legal, we experience this regularly in the form of an ever-increasing need to advise and execute on the stipulations of cross-border discovery. To take a deep-dive into this intriguing intersection of law and international business, we recently sat down with Kenneth Rashbaum, an experienced litigator and often-published author on the topic of international data privacy laws.

Hudson Legal (HL): Today, you wanted to discuss two recent developments stateside and abroad that are expected to significantly impact international data protection and discovery?

Kenneth Rashbaum (KR): Yes, those developments include:

1. The American Bar Association (ABA) House of Delegates recently passed Resolution 103 urging US courts to respect foreign laws on data protection and privacy
2. The proposed revisions to the European Union Privacy Directives, which, if accepted, should be passed into law  within the next two years

HL: You were chair of the drafting team for ABA Resolution 103, can you explain the intent and potential impact of the resolution?

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