In December, the Sedona Conference® made available its latest publication, International Principles on Discovery, Disclosure & Data Protection: Best Practices, Recommendations & Principles for Addressing the Preservation & Discovery of Protected Data in U.S. Litigation (Public Comment Version). Among the information included are six Principles and attendant commentary as well as a model protective order and a “model data process and transfer protocol for use by parties and courts to better protect litigation-related data subject to data protection laws within the ambit of traditional U.S. litigation and court discovery practices.”
From the Introduction:
Here, TSC advances its position that data protection and discovery must co-exist. Data Protection Laws, after all, are not inherently antithetical to U.S. preservation and discovery efforts. U.S. courts and parties often provide protections for personal, confidential, and sensitive information through the use of confidentiality agreements and protective orders. Courts, in fact, have denied discovery in circumstances where privacy rights are deemed more important than the discovery sought by litigants.
To this end, the International Principles envisions a three-stage approach for parties seeking to avoid or minimize the conflict that might otherwise arise: (1) a stipulation by the parties or an order from the U.S. court to extend special protections to data covered by data protection laws; (2) a scheduling order by the U.S. court that phases discovery to permit time to implement data protection processes and to determine whether the same or substantially similar information is available from non-protected sources; (3) implementation of a legitimization plan by the parties to maximize simultaneous compliance with the foreign data protection law and the U.S. discovery obligation. The International Principles includes six definitions, six Principles, and a comment section under each Principle to elucidate the purpose of the Principle and provide references to supporting treaties, case law and other authorities. TSC believes it is time for a new roadmap, and it is our hope that the International Principles will help chart the new course.
A full copy of the publication is available for download from The Sedona Conference®, here.