Oot Quoted on Cross-Border Data Privacy in Legal Tech News
Shook, Hardy & Bacon Partner Patrick Oot discusses current and potential problems when investigating or litigating data privacy and security across borders in a September 29 Legal Tech News article.
As data security and privacy discovery expands, some countries have approved blocking statutes, which prevent discovery or investigations within its borders. Oot describes Switzerland’s Penal Code, saying, “National sovereignty tends to act as the overarching principle for blocking statutes; Article 271 of the Swiss Penal Code prevents compulsory response to a foreign jurisdiction's criminal investigative demands and forces use of mutual legal assistance treaties."
Oot, who is the co-founder of The Electronic Discovery Institute, describes the changes to the discovery process when a country has blocked access, saying, “Compulsory civil demands (e.g. a U.S.-based court order without an opportunity to quash) require proper service and submission of a letter of request to the Swiss authorities. Finally, a U.S.-based organization with a Swiss-based affiliate may voluntarily respond to a civil request if the request has been properly served through judicial assistance, and the refusal to cooperate would only lead to consequences of a procedural nature.”
Regarding the U.S. Department of Justice’s efforts to enforce its search warrant in the U.S. on Microsoft for user Hotmail data that resides in Ireland, Oot says, “Microsoft and a laundry list of amici —including The Republic Ireland—disagree. Again, I think this is a sovereignty issue. DOJ has alternate methods to obtain the data by following the MLAT process and cooperating with law enforcement in Ireland—it seems that DOJ wants to skip that process.”
As data security and privacy discovery expands, some countries have approved blocking statutes, which prevent discovery or investigations within its borders. Oot describes Switzerland’s Penal Code, saying, “National sovereignty tends to act as the overarching principle for blocking statutes; Article 271 of the Swiss Penal Code prevents compulsory response to a foreign jurisdiction's criminal investigative demands and forces use of mutual legal assistance treaties."
Oot, who is the co-founder of The Electronic Discovery Institute, describes the changes to the discovery process when a country has blocked access, saying, “Compulsory civil demands (e.g. a U.S.-based court order without an opportunity to quash) require proper service and submission of a letter of request to the Swiss authorities. Finally, a U.S.-based organization with a Swiss-based affiliate may voluntarily respond to a civil request if the request has been properly served through judicial assistance, and the refusal to cooperate would only lead to consequences of a procedural nature.”
Regarding the U.S. Department of Justice’s efforts to enforce its search warrant in the U.S. on Microsoft for user Hotmail data that resides in Ireland, Oot says, “Microsoft and a laundry list of amici —including The Republic Ireland—disagree. Again, I think this is a sovereignty issue. DOJ has alternate methods to obtain the data by following the MLAT process and cooperating with law enforcement in Ireland—it seems that DOJ wants to skip that process.”
