Electronic discovery for legal matters within the United States often involves preserving, collecting, processing, reviewing, and producing data that concern individuals living outside the United States. In some of these situations, the data privacy laws of jurisdictions outside the United States can complicate electronic discovery to be performed in the United States. Perhaps the most well-known data privacy law is the European Union’s General Data Protection Regulation (“GDPR”), which outlines requirements related to the processing of the personal data of individuals residing in the and the European Economic Area (“EEA”) and addresses the transfer of data outside the EEA.Read More
Electronic discovery for US litigation and legal proceedings often implicates data outside the US. As data privacy and protection laws evolved around the globe, it’s critical to understand the limitations obstacles that may arise when collecting, processing, reviewing, and producing such data. China’s Data Security Law (“DSL”) and Personal Information Protection Law (“PIPL”), both enacted in 2021, have received heightened attention following China’s imposition of fines totaling roughly $1.2 billion in light of violations of these laws and its Cybersecurity Law (“CSL,” enacted in 2017) by Didi, China’s largest ride-sharing service provider. China’s DSL and PIPL are particularly noteworthy of their potential application to data processing and transfer actions that may occur both during the ordinary course of business and in response to litigation in other jurisdictions, such as the United States.Read More
Key Insight: Materials stored extraterritoriality could be discoverable, subject to discretion to authorize discovery.
Nature of Case: legality of mandated “fire sale” of bank
Electronic Data Involved: due diligence materials stored in Spain
Keywords: extraterritoriality discovery
Key Insight: Foreign corporation can seek discovery of American party to be used in foreign court if its narrowly tailored
Nature of Case: corporate share agreements, corporate ownership international
Electronic Data Involved: documents (generally)
Keywords: foreign proceedings, corporate ownership, discovery, foreign corporation
Key Insight: The court reversed the suppression of emails due to Leon good faith exception
Nature of Case: Visa fraud, Trade secrets
Electronic Data Involved: e-mails
Keywords: Probable cause, Leon good faith exception
Key Insight: Failure to produce discovery and making misrepresentations about the nature and content of documents so as to not produce them.
Nature of Case: trademark infringement
Electronic Data Involved: business documents, text messages, personal messages of employees.
Keywords: Compel, “chinese privacy law” misrepresentation,
Key Insight: Party could obtain discovery of websites archived by American company for use in a foreign tribunal
Nature of Case: trademark enforcement
Electronic Data Involved: archived websites
Keywords: foreign discovery, archived websites, Section 1782 application, international trademark enforcement
Key Insight: Trial Court had denied request for documents. Third Circuit remanded for further review based off four-factor discretionary test after finding that it met the basic statutory requirements to be considered.
Nature of Case: Trade Secret
Electronic Data Involved: Documents in US, desired for foreign matter
Keywords: foreign proceeding.
Key Insight: Whether US based discovery can be used in a foreign proceeding
Nature of Case: 28 U.S.C. 1782 request for US based Discovery to be used in a foreign proceeding
Electronic Data Involved: Business documents
Keywords: US based discovery, foreign proceeding, serve document subpoenas
Key Insight: Petitioner met statutory requirements under Section 1782, but not the discretionary factors. Circuit court affirmed denial of discovery request.
Nature of Case: European Patent Case
Electronic Data Involved: Documents in US for use in European Case
Keywords: Foreign Proceeding