E-Discovery Rules and European Privacy and Data Protection Law

The underlying legal principles of US discovery and European data protection are often in conflict. This conflict is heightened in litigation involving multinational corporations with relevant data located in Europe given the dramatic increase in electronic information and a US discovery model that expressly recognizes the importance of the preservation, collection and production of electronically-stored information (ESI).

A party that receives a request for the production of personal data that is, for instance, stored on a server of a European subsidiary or affiliate is often placed in a dilemma—satisfy compulsory US discovery obligations or comply with European data protection laws.
On February 11, 2009, the European Data Protection Working Party—an independent European advisory board on data protection and privacy—adopted Working Paper 158 concerning "pre-trial discovery for cross-border civil litigation." The Working Paper aims to reconcile the "demands of the litigation process in foreign [non-European] jurisdictions" with European data protection obligations.