E-discovery rules vary by country, with the US being more liberal and the EU being more restrictive. E-discovery is a legal procedure for parties to access each other’s documents before a trial. US rules are codified in the Federal Rules of Civil Procedure, with fixed deadlines and format requirements. EU rules restrict the sharing of personally identifiable information, with exceptions for consent and legal obligation. EU regulations prohibit exporting electronic data to countries with less privacy protection, including the US.
Rules on e-discovery vary widely from country to country, but in general the most common rules concern how electronically stored information must be delivered to an adversary party and the conditions under which such delivery must take place. In the US, e-discovery rules are generally liberal. The law requires disclosure of anything deemed “material,” unless protected by a defined privilege. Things are much more restrictive in the European Union, where directives prohibit the sharing of any personally identifiable information from one entity to another in the absence of consent or some definite legal obligation.
The most common e-discovery rules concern the specifics of how electronic discovery should occur. Discovery is a legal procedure that happens before a trial and is basically an opportunity for both parties to a lawsuit to take a look at each other’s documents in an attempt to look for evidence and build a case. In the age of the Internet, much of the material that falls within the scope of discovery is archived electronically. Governments have adopted e-discovery rules to streamline the process.
In the United States, e-discovery rules are codified in the Federal Rules of Civil Procedure. Among other things, the rules stipulate the appropriate scope of any e-discovery search, including what type of information must be provided and how discovery should be requested between parties. Also included are rules on how electronic information should be held and enforced.
US law also establishes fixed deadlines that dictate when e-discovery materials must be delivered and when the parties must meet to agree on terms of discovery. The format of the materials is also important. All information rendered in discovery must be legible and preserved in their original form without omissions or additions. The rules establish privileges, or exceptions, to which documents must be turned over and outline fines and penalties for non-compliance.
European Union countries take a more restrictive approach. The EU Privacy Directive (95/46/EC), adopted by each member country, sets out the EU’s general privacy requirements. These rules aren’t straightforward e-discovery rules in the way that US rules are, but they still refer to e-discovery because they place restrictions on how personal data can be shared. In short, they prevent most disclosures of personally identifiable information, whether for legal action or otherwise.
Exceptions exist when the identified person consents or when the information is required to comply with a legal obligation. E-discovery might be considered a legal obligation in some circumstances, but not always and usually not when originating overseas. It is likely that many of a particular company’s electronic documents contain personally identifiable information in some form. What exactly qualifies as personally identifiable information varies by country, but in some cases it’s as simple as your full name or phone number. The Privacy Directive lays down rules on how information should be removed or blacked out.
European regulations also generally prohibit the export of any electronic data to countries with less restrictive privacy protection frameworks. The United States is such a country. EU rules allow for limited data exchanges with the US during a dispute, but only if certain self-certification requirements and standards are met.
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