February 17, 2021

The Sedona Conference Working Group 6 on International Electronic Information Management, Discovery and Disclosure: Annual Meeting 2021

Proportionality in Cross-border Discovery and Investigations

Overview

Mike Zogby — deputy practice group leader of the Product Liability & Mass Torts group and co-chair of the litigation segment of the Health & Life Sciences industry group — served as a panelist and dialogue leader relating to “Proportionality in Cross-Border Discovery and Investigations” for the Sedona Conference’s 2021 Annual Meeting of Working Group 6 on International Electronic Information Management, Discovery, and Disclosure. Mike served on the Drafting and Brainstorming Committee for the Commentary on Proportionality in Cross-Border Discovery and Investigations, and he led the discussion on scope of the commentary during the annual meeting.

The 2015 amendments to Federal Rule of Civil Procedure 26(b)(1) make explicit that the scope of permissible discovery in U.S. federal courts is limited to that which is “proportional” to the needs of the case, considering certain factors. Following those amendments, some U.S. courts have used a Rule 26(b)(1) proportionality analysis to consider the impact of U.S. data privacy laws and concerns on the production of information and documents in U.S. litigation. However, U.S. courts generally have not looked at international data privacy issues through a Rule 26(b)(1) proportionality “lens.” The Sedona Conference International Litigation Principles provides guidance on balancing potential conflicts between U.S. discovery requirements and non-U.S. data protection laws, and specifically references Rule 26(b)(1) in this context. In addition, The Sedona Conference Commentary on Proportionality in Electronic Discovery references “privacy” interests generally as a potential factor that may weigh in favor of limiting discovery.

The Proportionality in Cross-Border Discovery Brainstorming Group was tasked with considering in greater depth whether the U.S. legal community would benefit from additional guidance from the Sedona Conference Working Group 6 on International Electronic Information Management, Discovery and Disclosure on whether it is appropriate under Rule 26(b)(1) to consider cross-border legal conflicts involving data protection in the proportionality analysis, and if so, what factors should be considered as part of this analysis.

Besides proportionality, the WG6 annual meeting also included discussion 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.

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