RVM’s Managing Director of Professional Services Laura Kibbe shares her thoughts on the changes and challenges that have impacted the eDiscovery industry this year, and what we should expect from the fast approaching year 2016.
Regarding the disappearance of safe harbor rules, could you tell us a bit more about how global information sharing impacts eDiscovery?
Almost every company today is global in some form. It simply makes sense to move information to meet business needs, and it is most efficient for information to be borderless. Because privacy laws directly impact the ability of that information, when it contains personal data, to make that onward transfer, creating a framework that allows movement while still respecting he privacy laws is a tricky proposition for many companies. Add to that that the regional laws (e.g., the EU Data Directive) are only floors above which any individual country (e.g., France) can feel free to increase required protections, and a company can be faced with an extremely difficult regulatory scheme to manage even something as simple as a global payroll.
How will the increase of regulations abroad affect legal proceedings in the United States?
Judges will say “I don’t care that the documents are protected by French law, you need to produce the information or you go to jail”. The amended FRCP Rule 37(e) introduces good faith, so companies can’t hide behind domestic privacy laws, but they won’t be penalized if they did everything in their power to obtain the relevant information. A demonstration of good faith is clearly a demonstration of competence. Lawyers must understand the technology, and if they don’t, they must associate themselves with experts who can assist them effectively. Service providers have that high level of competence, and can certainly help with strategy.
To be continued…