Voyage of discovery

The prospect of embarking on a cross-border e-discovery exercise is complicated by the fact that many countries around the world have widely differing legal systems and philosophies with regard to data privacy and disclosure.

The US has a very broad discovery system, whereas member states of the European Union, Canada and Asia have a much more proportionate approach to disclosure and often have very complex data privacy rules, which specifically prohibit the liberal discovery approach taken by the US legal system.

This can be especially problematic when a cross-border discovery exercise is being led from the US. Further, now that many companies have a global presence, there is often data that may be relevant to an investigation or litigation which originates in one or more European offices. Europe in particular has a long history of fiercely protecting the individual’s right to privacy, which often causes an obstacle to a US-led discovery fulfilling its discovery obligations.

Potential consequences

The consequences of violating these conflicting principles can be