The eDiscovery Passport: Don’t Do Cross-Border Discovery Without It
I continue to be astounded by the sweeping effects of globalization on the world economy. In my current position, I have the opportunity to observe this phenomenon first hand as I visit Symantec customers across the globe. My business travels in far-flung locales frequently remind me of my college study abroad program, which took me to thirteen different countries throughout the world. Bypassing the usual hot spots of France, Italy and Germany I knew I would get to at some point in life, I toured Southeast Asia, South America, central and southern Africa, the Far East, Alaska and the Caribbean. Not only did I have the chance to break down personal cultural barriers and develop an appreciation for different customs, I also acquired an understanding of the legal systems of these nations. Perhaps my most exciting experience during my travels took place in Cuba, where my colleagues and I learned a thing or two about the speed and vigor of the Cuban justice system and unsanctioned street cigar purchases.
Just like those students exploring Havana for the first time, organizations that are transacting business in new international markets are also learning a thing or two about the legal systems in those countries. It should really come as no surprise that the increase in globalization has brought a corresponding expansion of cross-border legal and compliance issues. Indeed, organizations are now being forced to get “up to speed” with new or previously unknown regulations such as the Bribery Act 2010, the UK’s answer to the U.S. Foreign Corrupt Practices Act. Moreover, companies and their counsel are being forced to address a glaring knowledge gap regarding the differences that exist with how nations address discovery and data privacy in litigation.
This gap is not just in understanding global laws. It also lies in the development and application of those laws across venues. These complex challenges are analogous in a way to the conundrum posed as a final exam question to my International Law class by the late Chris Joyner, co-founder of the Georgetown Institute for International Law. In what is probably the most interesting test question I have ever encountered, we were asked to argue the merits of the statement: “International Law is to Law as Professional Wrestling is to Olympic Wrestling.” Organizations are being similarly challenged today by troubling cross-border issues for which there are sometimes unclear laws and inconsistent enforcement. At times, litigants may even “toss the officials over the top rope,” preferring to engage 1-1 rather than in the current system.
I have felt strongly for many years that organizations would benefit from having a greater awareness of global legal processes, particularly in the areas of discovery and data privacy. To better understand country and regional differences in these areas, I led an ambitious project in 2009 on behalf of The Sedona Conference that culminated in the International Overview of Discovery, Data Privacy, and Disclosure Requirements. A 222-page epic, the International Overview provided a detailed analysis of the discovery and data privacy provisions governing various countries in Europe, Asia and the Americas. Many thanks to Richard Braman, who refused to accept my trepidation about starting such a daunting project when he pitched me on it at the WG6 Conference in Bermuda. It was an incredible experience to work with so many of the global leaders in this field like James Daley, Christian Zeunert, Sandra Potter, Janet Lambert and Axel Spies.
While the International Overview provided a strong “deep dive,” I still felt that many organizations would derive greater benefit from a more straightforward discussion of these discovery and data privacy laws. Through a team of eDiscovery and Information Governance attorneys, Symantec has done just that, releasing a series of “eDiscovery Passports™” that describe some of the basic discovery and data privacy laws in various countries. These “eDiscovery Passports™” are a great resource for organizations and their attorneys who are working to understand the basics of these cross-border issues and better prepare for the challenges of pursuing legal rights across international boundaries.
My day-to-day work at Symantec and a quick scan of my LinkedIn/Facebook friends leaves no question as to the international element that is now ever-present in business and personal affairs. The work that Sedona and others are doing to help the law keep pace with technology is critical. I’m happy to have had the chance to work on this and hope these travel guides help advance the discussion in a reasoned and just way.