DOCUMENT Magazine - June 2008 - (Page 9) hadow litigant who is faced with the prospect of having to comply with a discovery request in the US, which could cause them to violate the laws of another country. Several courts have held that a court in the US has jurisdiction to order a litigant to produce documents or information located in a foreign country, even if to do so would put that litigant at risk of violating the laws of that jurisdiction. However, courts in the US have attempted to address this inherent conflict arising from the differing philosophies. In an effort to concede on such issues, they have specified a series of factors to be weighed by the court when it is considering a request for production of evidence located in a foreign country. Those factors are: the importance of the information to the litigation, the degree of specificity of the request, whether the information originated in the US, the availability of alternative means of securing the information, the extent to which non-compliance would undermine important interests of the nation where the information is located, the hardship of compliance on the party or witness from whom the discovery is sought and the good faith of the resisting party. Even so, consideration of these factors often results in a party having to produce information located in a foreign jurisdiction. iance more than full disclosure in litigation? In the EU, the Directive and the Data Protection Authorities have established certain exceptions to the Directive as well as certain programs to allow the transfer of personal data outside the EU. >> Consent: Under the Directive, an entity may collect and process data if the data subject, i.e., the person identified in the data, gives “unambiguous consent” to the collection of personal data. Multinational litigants should be cautious about relying on consent as the sole basis for collecting and processing personal data. Each of the different EU member states interprets the definition of consent in their own way, though it is safe to say that each interprets the term strictly. Some countries, such as Germany, have questioned whether a request for consent to disclose personal information made by an employer to an employee is inherently coercive and, thus, potentially ambiguous. A corporation seeking to rely on consent to collect personal data should consult with legal counsel who is an expert in the data protection laws of the jurisdiction in question. It is likely that they will advise that the consent should be obtained in writing and should be as simple and straightforward as possible given language constraints and the requirements of local law. Also, depending on the jurisdiction, there may be additional requirements, such as notifying the Data Protection Authority of the data collection. If the corporation is unable to obtain consent, there are some exceptions to the consent rule; however, as with the definition of consent, the Data Protection Authorities construe these exceptions very strictly in favor of protection of personal data. Some of these exceptions are: (a) the processing is necessary for the performance of a contract to which the data subject is a party; (b) the processing is necessary to protect the vital interest of the data subject; (c) the processing is necessary for compliance with a legal obligation to which the company is subject; or (d) the processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority. While these exceptions appear to offer an opportunity to obtain personal data without the consent of the individual, a corporation should not attempt to do so without the advice of a local expert. For example, since most often a multi-national litigant would be seeking to collect and produce data in compliance with an order from a US court, it would appear that exception (c) would apply and the litigant would be protected from sanctions by EU authorities. However, many EU Data Protection Authorities have taken the position that the “legal obligations” in the exception refer only to obligations imposed by EU authorities and not those imposed by a court in the US. www.DOCUMENTmedia.com june.08 document 9 COLLECTING AND PRODUCING DATA IN THE EUROPEAN UNION So, how does a multi-national litigant cope with the production requirements of US courts and the privacy restrictions of countries that value privacy http://www.DOCUMENTmedia.com
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