February 03, 2022

The Sedona Conference Working Group 6 (WG6) Annual Meeting 2022

Proportionality in Cross-Border Discovery



Michael C. Zogby — deputy practice leader of the product liability & mass torts group and co-chair of the health & life sciences litigation industry team — served as a panelist and dialogue leader during the 2022 Annual Meeting of Working Group 6 on International Electronic Information Management, Discovery, and Disclosure (WG6), discussing “Proportionality in Cross-Border Discovery.”

Mike is serving on the drafting and brainstorming committees for the Commentary on Proportionality in Cross-Border Discovery and Investigations, and he also led a discussion on the scope of the commentary during the 2021 Sedona WG6 annual meeting. Alexandra K. Benton contributed valuable research and case-marshaling assistance in the drafting of the commentary and the preparation for the WG6 meeting.

A number of U.S. courts have used a Federal Rule of Civil Procedure 26(b)(1) proportionality analysis to determine whether information residing outside the U.S. that is subject to foreign data protection or other laws restricting disclosure is discoverable in U.S. litigation. The Sedona Conference International Litigation Principles provides guidance on balancing potential conflicts between U.S. litigation requirements and non-U.S. data protection laws, and specifically references Rule 26(b)(1) in this context. There is no stand-alone guidance on these issues from The Sedona Conference, however, and the drafting team has prepared a draft stand-alone Commentary on the applicability of the Rule 26(b)(1) proportionality analysis to cross-border discovery involving non-U.S. data protection laws and regulations.

The Commentary explains that cross-border discovery is often challenging for parties, practitioners and courts attempting to navigate conflicts between U.S. discovery obligations and non-U.S. laws, impacting the scope and practice of data preservation and discovery. Challenges and potential burdens have been exacerbated in recent years due to the emergence of new and more stringent data protection laws, evolution in existing data protection regimes, ever-increasing data volumes, and the proliferation of novel communication and collaboration technologies that use and rely upon personal information of the participating users and others. The Commentary examines the landscape of overlapping proportionality and comity analyses, recommending a framework that recognizes proportionality as a threshold first-step and considering the impact of compliance with non-U.S. laws at issue, followed by comity analyses. It also examines potential costs and burdens of cross-border discovery, including nonmonetary risks and burdens, and including those potentially resulting from measures implemented to comply with non-U.S. laws, and advises that arguments based on such burdens should be made with sufficient specificity and detail.

Besides proportionality, the WG6 annual meeting also included discussions on discovery under 28 U.S.C. § 1782, international legal holds, cross-border privilege issues, ephemeral messaging and updates to the second edition of International Litigation Principles. The Sedona Conference is a nonpartisan, nonprofit 501(c)(3) research and educational institute dedicated to the advanced study of law and policy in the areas of antitrust law, complex litigation, intellectual property rights, and data security and privacy law.

Mike has spoken on proportionality and comity issues for the James Humphrey Complex Litigation Center of the George Washington School of Law and the International Association of Defense Counsel.

Speaking Recap
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