U.S. Courts: Consider and Respect Foreign Data Protection and Privacy Laws!

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An article posted on the LeClair Ryan website, no author credit provided.

The article discusses the U.S. courts, and how they address issues involving data that resides in foreign jurisdictions.

The article states, "Generally, parties involved in cross-border litigation in U.S. courts have been faced with a difficult choice -- a "Hobson's Choice" -- whenever compliance with U.S. discovery demands has raised conflicting legal obligations in non-U.S. jurisdictions. For example, at the same time as U.S. courts may seek to compel litigants and third-party witnesses to produce documents and other information, and impose serious sanctions for failure to comply, the production of those documents and information may constitute a violation of foreign data protection rules, such as the 1995 EU Data Protection Directive, thus raising the possibility of hefty sanctions for complying with those U.S. discovery orders."

The article references a recent U.S. based attempt to address this issue further, "The American Bar Association has recognized this dilemma and, this week -- less than two weeks after the EU Commission published its first draft of the new EU Data Protection regulation wherein new sanctions of up to 2 percent of annual worldwide turnover have been proposed for serious breaches, which include an unlawful data transfer to the U.S. -- passed Resolution 103A, "urg[ing] 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 that is subject to preservation, disclosure, or sought in discovery in civil litigation.""