Shortly after the Schrems judgment was published, I moderated a panel on cross-border discovery at Lawtech Europe Congress in Brussels.
One of the panellists was US Magistrate Judge Andrew Peck, and I took the opportunity to interview him about one particular aspect of US court requirements for discovery from the EU or from other jurisdictions which impose data protection and privacy restraints on discovery.
The point I picked on was the quality and timeliness of the information given by lawyers to the US Court about the conflicts caused by EU (and other) data protection and privacy restrictions, and I asked Judge Peck if we were seeing progress on this. The interview appears below.
Judge Peck says that the early cases raised problems because, too often, the lawyers adopted a “just say no” approach – they simply asserted that EU restrictions prevented them from complying with the discovery request insofar as it related to data in the EU. Unsurprisingly, US judges were not much impressed by this approach, particularly as they were not themselves particularly well-informed on the subject.
As more lawyers have come to understand the problems themselves, we are seeing a better approach in many cases. Those who understand the problem, who have identified the problem data and can explain not only why it is a problem but what they can do to minimise the effect, stand a better chance of getting a sympathetic hearing in the US courts.
It may be possible, for example, to persuade the court to defer discovery from foreign sources (as Judge Peck himself did in the Da Silva Moore case); it may be that the requesting party can get all it needs (which may be less than what it wants) from other sources, or that the case settles before the problem becomes acute.
Whilst the US courts are never likely to be sympathetic to the French Blocking Statute, whose sole purpose was to impede US discovery, there was increasing awareness, Judge Peck says, of the importance of data protection and privacy restraints. The publicity given in mainstream media to the Schrems judgment would help make judges more aware of the issues.
Judge Peck was wearing the badge of the Sedona Conference. Sedona published, in 2011, its International Principles which set out guidelines to help mitigate the problems. Any US lawyer undertaking discovery outside the US should be aware of them and should bring them to the attention of the court where relevant. I have heard lawyers say that many courts do not take any notice of the Sedona Principles. This may well be true – the US judiciary, like ours in the UK, is of uneven quality and there is anyway a difference between ignoring something and finding after due consideration that it is not helpful in the instant case. That is not a reason for ignoring the Principles.