Discovery Challenges in Cross-Border Litigation and Investigations

By Drew Macaulay, Managing Director

The need for multinational corporations to gather and review documents from different jurisdictions for investigation and litigation purposes is not a new phenomenon, but the associated challenges continue to intensify. Corporations that operate across borders must be ready to overcome a variety of legal, logistical and linguistic hurdles, and all too often in circumstances where time is tight, and budgets stretched.

Legal challenges to conducting discovery exercises overseas include personal data privacy, banking secrecy, “blocking” statutes and state secrets legislation. Of these, data protection legislation is the most commonly encountered issue, where the data that the company needs to collect, review and produce originates in a jurisdiction where the rights of the data subject (most often an employee) are protected in relation to data that identifies them. Again, this is not a new challenge, but one where the risks of non-compliance have dramatically increased in Europe with the introduction of the General Data Protection Regulation and its associated fines based on a percentage of global turnover.

It is not only personal data privacy that causes delays and additional cost in cross-border discovery exercises. In some jurisdictions, notably Switzerland and Singapore, legislation has been enacted to enforce the protection of data concerning legal entities such as corporations. Depending on the jurisdiction, this can include information about the company’s customers and other third parties and as such, names, signatures, bank account details and contact information (for example, email addresses or telephone numbers) may also be deemed private and protected from disclosure.

This article was originally published in the USLAW Magazine Fall 2019 issue.

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