NYC Bar Association Releases Cross-Border E-discovery Guidelines

NYC Bar Association

Seeking to help local attorneys better manage their international discovery responsibilities, the New York City Bar Association’s E-discovery Working Group has released a cross-border e-discovery guide.

Entitled “Cross-Border E-discovery: Navigating Foreign Data Privacy Laws and Blocking Statutes in U.S. Litigation,” the guide looks at state and federal case law that pertains to cross-border disputes and discusses best practices for handling domestic discovery obligations when faced with conflicting legal statutes, among other things.

Daniel Meyers, president of the information governance division at TransPerfect and chair of the NYC Bar Association’s E-discovery Working Group, said the impetus releasing the guidelines was to help practitioners identify cross-border issues early on and deploy specific “workflows to navigate the issues in the event they are identified.”

He explained that cross-border e-discovery can be quite challenging when a local practitioner “has a New York discovery obligation included in their scoped data that sits in another jurisdiction, which prohibits transferring data to the U.S. and to New York.”

He added that New York-based practitioners in particular are more exposed to these cross-border discovery disputes, given the amount of international clients they serve. Cross-border e-discovery “often comes up in New York City because, as a global financial city and really just a leading business city, we frequently have entities that do business here” that are either foreign subsidiaries of international corporations or have satellite offices overseas.

But there are ways that e-discovery practitioners can mitigate the chances they will be caught between conflicting international data production laws. Meyers said that from the start of a matter, e-discovery practitioners need to think “through where the potentially relevant documents are geographically located, what the corporate structure between their corporate client and potential foreign entities is, and who is in control or custody of the foreign data.”

Once they have all the information, practitioners can then “put together a workflow that does as much as possible in the foreign jurisdiction,” such as e-discovery review, processing, and redacting sensitive information, he said. It is more likely, after all, that international courts will allow the transfer of small data sets, which have been specifically reviewed for relevancy, than larger datasets, which can often include non-relevant information.

Some international courts, however, may still restrict data transfers to the U.S. in most circumstances. But should one have exhausted all avenues of bringing the data to the U.S., judges are likely to be sympathetic to a failure to disclose discoverable data.

“New York judges are familiar with this issue, and they are wary of practitioners and parties using foreign laws as a pretext to avoid discovery,” Meyers said. “But if you can demonstrate you made a reasonable, good faith effort to do everything in your power to navigate international laws and bring it here… you got pretty good grounds for a protective order.”

National frameworks addressing the cross-border discovery issue are still ongoing. For instance, the New York City Bar association’s guidelines come a little less than a year after the Duke Law School’s EDRM organization announced it would begin developing guidance for cross-border data transfers specifically with a view of adhering to the EU’s General Data Protection Regulation (GDPR), though that guidance has not been released.