April 01, 2014

Global Litigator: Privacy Challenges in Obtaining Discovery from Europe

Litigators increasingly find themselves trapped between U.S. discovery requirements and European privacy laws.

Kate J. Brimsted

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The curtain rises on the opening scene in a transatlantic privacy drama. A multinational automotive components business, Company, Inc., headquartered in the United States, has fallen out with a vendor over failures in the company’s new global distribution management system. Trust is breaking down between the protagonists and it appears inevitable that litigation in the United States (and possibly also elsewhere) will ensue. It is a classic tale of misunderstandings and disagreement over the contracted-for scope and functionality, part of which was scoped by Company, Inc.’s European logistics teams. The U.S. central procurement team are red faced and the logistics team are ashen faced at the prospect of failures to meet future customer commitments. Enter Tom Mynfield, the new general counsel, who is belatedly made aware of all this and decides he urgently needs to review a range of emails and other documents, some of which are held only by the European subsidiaries. Tom asks the global information technology (IT) team in the United States to remotely access the European server in London and copy the documents he needs.

Mindful that some further information might be stored locally on European employees’ laptops or smartphones, to complete his review, Tom contacts his French, German, and British counterparts to arrange for the gathering of this company property for imaging and also to make them aware that a central document hold is in place and that it also affects documents created by or received by personnel at the European companies.

Tom then hears suspicions that there may be deeper issues than those that have appeared so far (he has now heard a rumor about lavish hospitality that might have been accepted by company procurement staff from the contractor).

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