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Article
International E-Discovery: Navigating the Maze
University of Pittsburgh Journal of Technology Law & Policy (2008)
  • Erica M Davila, Rutgers Law School - Newark
Abstract

Globalization and the growing mountain of Electronically Stored Information (“ESI”) will inevitably lead to an increase in discovery requests for ESI located abroad. But no consistent methodology exists for United States courts to evaluate whether discovery of ESI abroad is appropriate, and if so, the consequences for not complying with a discovery order. As international commerce depends on “the ability of merchants to predict the likely consequences of their conduct in overseas markets,” United States courts need to apply a consistent standard to decisions involving the discovery of international ESI. This paper reviews existing law related to international discovery and electronic discovery (“E-discovery”) and proposes a blended approach to be considered by courts to evaluate discovery of international ESI. This blended approach balances conflicting policy concerns related to discovery of international ESI including, (1) the equity consideration of ensuring that multi-national businesses doing business in the United States are not given an unfair advantage in United States courts by avoiding burdensome discovery and (2) the comity considerations recognizing the inherent burden on foreign litigants of producing documents for discovery that may be protected by international law compounded by the burden and cost characteristic of any E-discovery.

Keywords
  • International,
  • Hague Convention,
  • ESI,
  • E-Discovery,
  • comity,
  • FRCP,
  • Federal Rules of Civil Procedure,
  • Blocking Statutes,
  • Privacy,
  • EU Privacy Directive
Disciplines
Publication Date
Spring 2008
Citation Information
8 PGH. J. Tech. L. & Pol'y 5