The US' wide-reaching mandate for document discovery frequently comes into conflict with European privacy laws. Kristy Grant looks at how the international jurisdictions are attempting to solve the issues

It's a frequent headache for many a US law firm: a US court or regulator requires a multinational company to turn over records from its international subsidiaries. It can be complex enough to locate relevant information held by custodians employed by numerous subsidiaries and stored on servers in multiple countries around the world, but then the question is asked – is the data collection lawful?

The US parent wants to complete discovery as quickly as possible, mindful of the US court's power to impose sanctions and pronounce judgment for the other side if they fail to comply with their discovery obligations. Management of the European subsidiaries will be concerned whether their instructions to preserve and turn over documents complies with local privacy laws.

If these concerns delay the process, the parent company may harbour a suspicion that data privacy laws are being used as an excuse to justify delay or, worse, to frustrate investigation into the subsidiaries' activities. Local management may feel constrained to take action in such a contracted timeframe that, in some countries, include risks of criminal prosecution (and resulting exposure to fines and even imprisonment) that can be challenging to mitigate.

The European view

Given that discovery often involves processing large volumes of personal data relating to employees, customers and other data subjects, among the main concerns for European respondents to US discovery is whether the discovery exercise may give rise to a breach of the European Union-wide Data Protection Directive. While the Directive complicates the international discovery, it is not an absolute bar to disclosure, and at its heart is the concept of proportionality.

In contrast, a number of countries have passed entirely separate laws, referred to as blocking statutes, which seek to prevent their nationals from complying with overseas court orders. Some of the most commonly encountered of these are in France and Switzerland. While section two of the UK's Protection of Trading Interests Act 1980 gives the Secretary of State a power to block overseas discovery obligations in appropriate cases, the powers granted by the Act have been used sparingly.

The rationale for blocking statutes is to protect the sovereignty prerogatives of the state concerned, and to require litigants and regulators to use formal channels, such as The Hague Convention's letter of request process. Sending data without utilising formal channels can result in criminal prosecution and fines, as occurred in the 2008 Executive Life case, in which a French lawyer was fined €10,000 (