Another decision of a US court shows the supremacy of the US courts over EU laws, at least as seen from the US. It doubtless plays well in Utah, but is probably bad news for US evidence-collection in the long term.
Before I begin, it would be kind to explain my title for those who are not au fait with recent US cases on data collection in Europe and with the claimed supremacy of the Federal Rules of Civil Procedure over EU data protection laws. In ordinary parlance, a “global power” is what the USA sees itself as. Nobody argues with that although, as events unfold before the Chilcot Inquiry into the decision to join America in the Iraq war, we do not share Tony Blair’s view that our relative status requires us to yap support like a sycophantic poodle whenever America condescends to speak to us. Access to data needs no explanation but, curiously, gives rise to much the same feeling in Europe vis à vis the US. By chance, the two most recent cases involving the claimed supremacy of American courts over trifling matters like EU data protection law are called, respectively, In Re Global Power Equipment Group, Inc and AccessData v Alste (see as to the first of these cases a helpful article by Morgan Lewis called French Blocking Statute still gets no respect from US court).
I have mentioned before the lawyer who took part with me in a video conference whose subject was privilege. He opened by saying that he was always confident that a new privilege case would come up just before he was due to speak on the subject. The last time I spoke at a conference about the conflict between US courts and EU restrictions on discovery was in November. The night before the conference, I learned of the Global Power decision, in which a court favoured use of the FRCP discovery procedures over the procedures under the Hague Convention (“favoured use of” – how diplomatic I can be sometimes).
I am due to speak on the subject next week at LegalTech on panels run by Epiq and by Trilantic. One of the specific topics allocated to me is the German Data Protection Act, and chance now delivers me the AccessData case of last week, which specifically relates to German data protection laws. The case involves more than one aspect of electronic discovery, including the form of production, but its primary interest lies in the conclusion that the defendant had “failed to demonstrate that the GDPA applies or that Hague Convention procedures are required in this matter” so that “the court concludes that the GDPA and the Convention procedures are not applicable to discovery in this case”.
Both these cases, and the earlier US Supreme Court cases which they follow, deserve proper citations and some analysis. Whether or not they are correctly decided under US law is not for me to say. I will come back to them for this purpose, but practicality and topicality suggest shoving the new decision under your nose straight away and leaving you to read it for yourselves. However correct the decision may be under US law, it is not going to help smooth the path of those who want to collect German data in the future.
My thanks to Michael Arkfeld and Twitter who, between them, ensured that I was made aware of this decision within two days of it being signed.