American Bar Association urges U.S. courts to regard foreign privacy laws

23. May 2012

One step further in resolving the dilemma of pre-trial Discovery in the U.S. in conflict with non-U.S. data protection laws: The American Bar Association adopted a resolution with the stated purpose to urge courts to respect foreign data protection and privacy laws in case of decisions on discovery issues.

Currently the interests of U.S. litigants to discovery are privileged by the courts when requirements of foreign privacy laws are not regarded. Other parties are in the situation to face inconsistent legal requirements and possible sanctions of foreign legal systems.

The resolution reads as follows:

“RESOLVED, That the American Bar Association urges that, where possible in the context of the proceedings before them, U.S. federal, state, territorial, tribal and local courts consider and respect, as appropriate, the data protection and privacy laws of any applicable foreign sovereign, and the interests of any person who is subject to or benefits from such laws, with regard to data sought in discovery in civil litigation.”

The American Bar Association says that the permission of unlimited discovery could impede global commerce or harm the interests of U.S. parties in foreign courts. Especially the laws in European jurisdictions and the EU Data Protection Directive limit the legal processing of personal data and the transfer of personal data outside of the EEA. There is also the fact, that some jurisdictions have enacted blocking statues to prohibit the seeking for disclosure of information that shall be used for evidence in foreign proceedings. For example in France a French lawyer had to pay a 10.000 Euro fine for obtaining discovery in France for a litigation in the U.S.

The resolution of the American Bar Association is not binding but could encourage U.S. courts to have a critical look at foreign privacy jurisdiction and the consequences of discovery for affected litigants or third parties. At the moment, data controllers who are forced to transfer data from the EU to U.S. for the purpose of discovery would be well advised to follow at least the guidance of Article 29 Working Party to comply with EU data protection obligations and to check in detail which way is the best.

Category: USA
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