New EU Cross Border Discovery Law Proposed

As the business world waits for the General Data Protection Regulation to become effective on May 25, 2018, big news about additional possible legislation broke today. According to Reuters, the new law would make it possible for law enforcement authorities to access personal data located on servers outside of the European Union. Statements made by the EU Justice Commissioner indicate that the EU is moving away from its position advocating for greater data privacy. Vera Jourova criticized current methods for cross border discovery as "very slow and non-efficient". The proposed law would bypass Multilateral Legal Assistance Treaties (MLATs) in cases where a suspect was charged with a crime carrying a potential sentence of three years or more.

This news comes one day before the Supreme Court of the United States hears oral arguments in United States v. Microsoft. In that case, the Court will decide if a warrant issued under the Stored Communications Act can compel American companies to produce data stored on servers located in foreign countries. Microsoft declined to compile with a warrant that requested emails relevant to a drug trafficking case that were stored on servers located in Ireland.

The Reuters report quotes the Microsoft vice president for EU Government affairs as saying with respect to the proposed EU law that, "I think the international law is pretty clear that police jurisdiction exercised outside your territory infringes the sovereignty of other countries."

Interestingly, the amicus brief filed by the European Commission in United States v. Microsoft, states that:

"Any domestic law that creates cross-border obligations—whether enacted by the United States, the European Union, or another state—should be applied and interpreted in a manner that is mindful of the restrictions of international law and considerations of international comity. The European Union’s foundational treaties and case law enshrine the principles of 'mutual regard to the spheres of jurisdiction' of sovereign states and of the need to interpret and apply EU legislation in a manner that is consistent with international law/"

. . . and further that:

"The GDPR thus makes 'mutual legal assistance treaties,' or MLATs,the preferred option for transfers. Such treaties provide for collection of evidence by consent, and embody a carefully negotiated balance between the interests of different states that is designed to mitigate jurisdictional conflicts that can otherwise arise."

GDPR Applicability to non-EU Citizens

When the European Union's General Data Protection Regulation becomes effective on May 25, 2018, anyone residing in the EU, not just EU citizens, will have the right the insist that corporations remove their personal information from its databases, or be provided with an explanation as to why this cannot be done.

Bundesdatenschutzgesetz Data

Yesterday, Judge Mazzant of the United States District Court for the Eastern District of Texas, in Zoch v. Daimler, 4:17-cv-578, 2017 U.S. Dist. LEXIS 185343 (E.D. Tex. Nov., 8, 2017) approved a motion to compel the production data from the German auto manufacturer, Daimler, A.G. in a products liability case.

The decision found that a motion to compel was not moot where the defendant had produced heavily redacted documents and failed to prepare a privilege log in accordance with FRCP 26(b). It further ruled that the German Federal Data Protection Act, the Bundesdatenschutzgesetz (BDSG) did not prevent the discovery of the evidenced requested by the defendants.

The BDSG is a blocking statute that limited the discovery of ""any information concerning the personal or material circumstances of an identified or identifiable individual (the data subject)." Mazzant found that several of the requests made by the plaintiff did not concern personal data, but that others did. Section 28 of the BDGS makes an exception for the disclosure of personal data in the public interest if the subject has no legitimate interest in the data being excluded. The Court did not find that the exception applies in this case.

The court then used the Societe Nationale analysis (which Judge Peck loves to discuss - see the Tip of the Night for October 18, 2016) in order to determine if the BDSG would need to yield to the discovery demands of American law.

1. The Importance of the Requested Discovery to the Litigation

The Court found that evidence on "comments, part change requests, defect notifications,letters, writings, e-mails, meeting minutes, analyses, internal remarks, and performance agreements" was compelling information.

2. Degree of Specificity of the Requests

The defendant conceded the plaintiff submitted specifically targeted requests.

3. Where Information Originated

The plaintiff conceded that the data originated outside of the United States.

4. Availability of Alternative Means of Securing Information

The Court seized on the fact that the defendants both stated that the information was protected by the BDSG and conversely also stated that is was available in the deposition testimony and redacted documents that were already available, in reaching its conclusion that alternative means did not exist.

5. Balancing of National Interests The Court reached its final decision on the motion to compel because of the nature of the data requested was related to business activities. ". . . despite Germany's interest in protecting such personal data, the quantity and context of the personal data at issue in this case mitigates these concerns. Here, Plaintiff's requests seek part change requests, defect notifications, meeting minutes, performance agreements, e-mails and writings regarding comments and remarks concerning the seat in question, and names of persons with knowledge of relevant facts." It determined that its protective order was sufficient to protect the confidentiality of the data, and Federal Rule of Evidence 403 would be an adequate means of preventing the admission of irrelevant or prejudicial evidence.

The court ordered documents to be produced in unredacted form, and a list of persons with relevant knowledge to be disclosed.