I am just back from the Sedona Conference Programme on Cross-Border Discovery and Data Protection in Berlin, on which I will write shortly.
I won’t put my suitcase away just yet, however, nor my notes from Berlin, because next week I am taking part in a three-city “Cross-Border Quandary Tour” in the UK, the Netherlands and Germany organised by AccessData. US Magistrate Judge Andrew Peck are taking part in all three sessions (details here), with a different panel for each of London, Amsterdam and Frankfurt.
The subjects of privacy and data protection go far beyond US ediscovery, but US demands for documents for litigation, regulation and investigations give the subjects their sharpest focus for those who form the bulk of my readership. Judge Peck has been invited to participate primarily because he is one of the few US judges who understands this subject from both sides of the difficulty which results from the collision between US demands and EU restrictions. He is also, of course, the leading judicial authority on predictive coding and we will take advantage of his presence to cover that subject as well.
There is in any event a cross-over between the two areas. The use of predictive coding and other analytical tools allow the identification of relevant documents, and of personally-identifiable information in documents, without human eyes falling on bulk-collected private data. That may make acceptable a trawl which would otherwise be unacceptable – although one must bear in mind the very broad definition of “processing” in the present Directive, even before we move to the General Data Protection Regulation.
None of this is easy, especially as the invalidation of Safe Harbour and the failure to agree on the terms of the Privacy Shield leaves companies and their lawyers in a no-man’s land.
Abdeslam Afras of AccessData has has been talking to some of our panel members and has written about them and about the forthcoming tour in an article called Privacy and Cross-Border Data Transfers Got You in a Quandary?
Come and join us in whichever city is most convenient for you.