The increase in globalisation continues to erase borders throughout the world economy. Organisations now routinely conduct business in countries that were previously unknown to their industry vertical. The trend of global integration is certain to increase, with reports such as the Ernst & Young 2011 Global Economic Survey confirming that 74 per cent of companies believe that globalisation, particularly in emerging markets, is essential to their continued vitality.

Not surprisingly, this trend of global integration has also led to a corresponding increase in cross-border litigation. For example, parties to US litigation are increasingly seeking discovery of electronically stored information from other litigants and third parties located in Continental Europe and the United Kingdom. Since traditional methods under the Federal Rules of Civil Procedure may be unacceptable for discovering ESI in those forums, the question then becomes how such information can be obtained.

At this point, many clients and their counsel are unaware how to safely navigate these international waters. The short answer for how to address these issues for much of Europe would be to resort to the Hague Convention of March 18, 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Convention). Simply referring to the Hague Convention, however, would ignore the complexities of electronic discovery in Europe. Worse, it would sidestep the glaring knowledge gap that exists in the United States regarding the cultural differences distinguishing European litigation from American proceedings.

The ability to bridge this gap with an awareness of the discovery processes in Europe is essential. Understanding that process is similar to holding a valid passport for international travel. Just as a passport is required for travelers to successfully cross into foreign lands, an "eDiscovery Passport" is likewise necessary for organisations to effectively conduct cross-border discovery.

The Playing Field for eDiscovery in Continental Europe

Litigation in Continental Europe and is culturally distinct from American court proceedings. "Discovery" as it is known in the United States, does not exist in Europe. Interrogatories, categorical document requests and requests for admissions are simply unavailable as European discovery devices. Instead, European countries generally allow only a limited exchange of documents, with parties typically disclosing only that information that supports their claims.

The US Court of Appeals for the Seventh Circuit recently commented on this key distinction between European and American discovery when it observed that "the German legal system . . . does not authorise discovery in the sense of Rule 26 of the Federal Rules of Civil Procedure." The court went on to explain that "[a] party to a German lawsuit cannot demand categories of documents from his opponent. All he can demand are documents that he is able to identify specifically-individually, not by category." Heraeus Kulzer GmbH v Biomet Inc.

Another key distinction to discovery in Continental Europe is the lack of rules or case law requiring the preservation of ESI or paper documents. This stands in sharp contrast to American jurisprudence, which typically requires organisations to preserve information as soon as they reasonably anticipate litigation. See, e.g. Micron Technology, Inc. v Rambus Inc. In Europe, while an implied preservation duty could arise if a court ordered the disclosure of certain materials, the penalties for European non-compliance are typically not as severe as those issued by American courts.

Only the nations of the United Kingdom, from which American notions of litigation are derived, have discovery obligations that are more similar to those in the United States. For example, in the combined legal system of England and Wales, a party must disclose to the other side information adverse to its claims. Moreover, England and Wales also suggest that parties should take affirmative steps to prepare for disclosure. According to the High Court in Earles v Barclays Bank Plc, this includes having "an efficient and effective information management system in place to provide identification, preservation, collection, processing, review analysis and production of its ESI in the disclosure process in litigation and regulation." For organisations looking to better address these issues, a strategic and intelligent information governance plan offers perhaps the best chance to do so.

Hostility to International Discovery Requests

Despite some similarities between the US and the UK, Europe as a whole retains a certain amount of cultural hostility to pre-trial discovery. Given this fact, it should come as no surprise that international eDiscovery requests made pursuant to the Hague Convention are frequently denied. Requests are often rejected because they are overly broad. In addition, some countries such as Italy simply refuse to honor requests for pre-trial discovery from common law countries like the United States. Moreover, other countries like Austria are not signatories to the Hague Convention and will not accept requests made pursuant to that treaty. To obtain ESI from those countries, litigants must take their chances with the cumbersome and time-consuming process of submitting letters rogatory through the US State Department. Finally, requests for information that seek email or other "personal information" (i.e. information that could be used to identify a person) must additionally satisfy a patchwork of strict European data protection rules.

Obtaining an eDiscovery Passport

This backdrop of complexity underscores the need for both lawyers and laymen to understand the basic principles governing eDisclosure in Europe. Such a task should not be seen as daunting. There are resources that provide straightforward answers to these issues at no cost to the end-user. For example, Symantec has just released a series of 'eDiscovery Passports' that touch on the basic issues underlying disclosure and data privacy in the United Kingdom, France, Germany, Holland, Belgium, Austria, Switzerland, Italy and Spain. Organisations such as The Sedona Conference have also made available materials that provide significant detail on these issues, including its recently released International Principles on Discovery, Disclosure and Data Protection.

These resources can provide valuable information to clients and counsel alike and better prepare litigants for the challenges of pursuing legal rights across international boundaries. By so doing, organisations can moderate the effects of legal risk and more confidently pursue their globalisation objectives.