Shook, Hardy & Bacon Partner Patrick Oot and eTERA Consulting Vice President and General Counsel Ashish Prasad have authored a Law Journal Newsletters article discussing "the effect of data privacy laws and blocking statutes on U.S.-based corporations" and offering "some practical strategies for counsel when dealing with international investigations and litigation."
Noting that more than 89 countries have enacted privacy laws prohibiting the "misuse or disclosure of private individuals’ data," the article focuses on the most stringent rules enacted by the European Union, including Germany, as well as blocking statutes put in place by countries with "the underlying goal of preventing foreign nationals’ acquiescence to U.S. discovery requests." It also describes the balancing test used by U.S. courts to determine whether to order cross-border discovery.
Oot and Prasad suggest that counsel facing cross-border litigation should not only "know the data: where it is, what it is, and why it is important," but "be cognizant of the data privacy laws specific to the country with which you are dealing." The authors urge practitioners to "consider seeking support of the foreign consulate/embassy, and look for alternative solutions that can accommodate both jurisdictions," in addition to understanding the implications of the EU – U.S. Privacy Shield. The article also points in-house counsel to the Sedona Conference Practical In-House Approaches for Cross-Border Discovery and Data Protection.
"Data privacy laws and blocking statutes can have a serious impact on international litigation," conclude Oot and Prasad. "By understanding the international discovery landscape and following the practical strategies outlined above, counsel can achieve experienced management of international discovery situations in the representation of the client."