The U.S. Discovery-EU Privacy Directive Conflict: Constructing a Three-Tiered Compliance Strategy

By Reyes, Carla L. | Duke Journal of Comparative & International Law, Winter 2009 | Go to article overview

The U.S. Discovery-EU Privacy Directive Conflict: Constructing a Three-Tiered Compliance Strategy


Reyes, Carla L., Duke Journal of Comparative & International Law


INTRODUCTION

Because of the different regulatory approaches of the United States and the European Union, litigants involved in U.S.-EU transborder litigation face a difficult situation regarding discovery. U.S. discovery procedures require litigants to produce any requested information under their control without regard to whether the information originated within U.S. borders. (1) Meanwhile, the European Union prohibits the transfer of data originating within its borders to the United States because it has determined that the United States lacks adequate data protection standards. (2) The steady increase of trans-border litigation has brought the conflict between U.S. discovery rules and EU data protection laws into sharp focus and spurred intense debate.

Despite calls from EU member states' data protection authorities for the Article 29 Working Party ("Working Party") to comment on the issue, (3) the lead EU administrative data protection body has remained silent. In the absence of such guidance from the Working Party, litigants in U.S.-EU trans-border disputes are left floundering in their attempts to comply with U.S. discovery rules without violating EU data protection law. This note sifts through the quagmire of regulations to help trans-border litigants view the U.S. discovery-EU data protection conflict through a transnational legal lens, and thereby, construct a strategy for compliance that respects U.S., EU and international law.

This note proceeds in three parts. Part I describes the nature and scope of the U.S. discovery-EU Privacy Directive conflict and investigates its roots in the larger differences between civil and common legal systems' approach to evidence gathering. Part II examines possible solutions to the legal quandary posed by the conflicting requirements, and Part III constructs the best possible compliance strategy for real world litigants.

I. UNDERSTANDING THE CURRENT CONFLICT AND ITS HISTORICAL ROOTS

Litigants in U.S. courts face strict penalties for failure to comply with the discovery process. (4) When data involved in the discovery process is located or originated in the European Union, these same litigants face strict penalties under EU data protection law for transferring the data to the United States. (5) This places litigants in U.S.-EU trans-border disputes in a difficult position. The conflict between the two sets of requirements has been a recent source of heated debate, (6) fueled, in part, by the long-standing disagreement between civil and common legal systems over the appropriate nature of evidence-gathering procedures.

A. The Conflict: EU data protection law confronts U.S. discovery rules.

The European Union began harmonizing the data protection laws of its member states with the adoption of Directive 95/46/EC ("Privacy Directive"). (7) The Privacy Directive restricts the transfer and processing of "personal data," which is broadly defined as "any information relating to an identified or identifiable natural person." (8) Privacy Directive Article 25 forbids the transfer of personal data to a third country unless the third country provides an adequate level of data protection. (9) Furthermore, if a specific third country is found to lack adequate data protection, EU member states are required to take affirmative steps to prevent the transfer of personal data to that country. (10) The EU position is that the United States lacks adequate data protection standards. (11) As a result, the United States and the European Union negotiated a safe harbor mechanism by which companies may voluntarily increase their level of data protection and become eligible for data transfers from the European Union. (12) The safe harbor, however, does not cover all sectors of data, (13) and, while specifically designed to govern data transfers, it also imposes restrictions on data processing which render the use of the Safe Harbor framework problematic in the U. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The U.S. Discovery-EU Privacy Directive Conflict: Constructing a Three-Tiered Compliance Strategy
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.