In February I posted on the American Bar Association’s resolution encouraging courts to “consider and respect, as appropriate, the data protection and privacy laws of any applicable foreign sovereign” in discovery matters. Now the Sedona Conference has published International Principles on Discovery, Disclosure & Data Protection, which are in the same spirit as the ABA resolution. The Principles, which are available on the Sedona Conference website, call for courts and parties to show “due respect” to foreign data protection laws, to resolve conflicts between data protection laws and US discovery rules “under a standard of good faith and reasonableness”, to limit discovery of protected data to information that is “reasonable and necessary to support any party’s claim or defense,” to make use of protective orders, and to provide for safeguarding of documents with protected data.
These principles, like the ABA resolution, seem eminently reasonable. It does seem, though, that both have a subtext—both stem from the impression that US courts today are not sufficiently respectful of EU data protection law. Otherwise, why the felt need to make a statement? One difficulty for making a change in the practice of the courts is that the language of Aérospatiale encourages the district courts to favor application of the FRCP. Perhaps groups interested in changing the trend in the law will ultimately need to bring another case to the Supreme Court, or to go through the rulemaking or legislative process. Given the large number of precedents applying Aérospatiale in a way that leads courts to apply the FRCP, it seems to me that efforts by the bar to alter the trend in the law face serious obstacles.
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