On this week of Halloween, it was only fitting that the speakers on the “Overcoming EU Data Privacy Challenges in E-Discovery” panel at the Association of Corporate Counsel’s annual meeting in Los Angeles considered a witch’s brew of issues affecting cross-border discovery. Headlined by Shira Scheindlin, U.S. District Court judge for the Southern District of New York, the panel discussed the impact of blocking statutes, the newly proposed amendments to the Federal Rules of Civil Procedure, and predictive coding technologies on cross-border discovery.
On the topic of blocking statutes, Scheindlin explained that they are rarely followed by U.S. courts, particularly if their “purpose is to disallow the broad purposes of discovery.” In contrast, Scheindlin indicated that U.S. courts are more reluctant to order compliance with a production request where a party faces a threat of actual punishment from the government where the requested information is located. She also clarified that courts are disinclined to issue a production order if a foreign government submits an amicus brief arguing against such a production. Nevertheless, there are very few instances when a foreign government files such an amicus brief, observed Dominic Jaar, a partner and national practice leader for KPMG Canada.
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