Sedona Conference® Explores GDPR Impact on E-Discovery

Law.com reports on a web seminar hosted by The Sedona Conference® international electronic information management, discovery and disclosure working group, which looked at how e-discovery professionals and courts are subject to the EU General Data Protection Regulation (GDPR).

Importantly, the panel suggested that the wide scope of what the GDPR considers to be personally identifiable information makes it probable that any EU data collection conducted by U.S. attorneys would have to comply to GDPR standards.

In the data-gathering phase at pretrial, bulk collection would not be advisable because counsel must comply with GDPR protocol even when merely transferring data to the United States, according to Denise Backhouse, a shareholder at Littler Mendelson. Backhouse said U.S. attorneys must do everything they can to make sure they’re only transferring information that is necessary for discovery.

An additional key takeaway from the session concerns whether the GDPR is a blocking statute – that is, a statute designed to prevent the production of information outside of a particular country. According to retired Magistrate Judge James Francis IV of the Southern District of New York, “The GDPR is not a blocking statute because it’s a substantive statute [that] deals with the privacy rights of EU citizens and is not directed exclusively at discovery, in any means.”

According to the article, Francis said it is vital to differentiate between a blocking statute and a regulation like the GDPR because courts will need to determine whether to allow cross-border discovery, and they tend to look at blocking statutes more skeptically than they do a substantive law like the GDPR.

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