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Special Master: Confidentiality Order Balances EU GDPR

In November, Special Master Dennis Cavanaugh issued a decision, In re Mercedes-Benz Emissions Litig., No.: 2:16-cv-881 (SDW) (JAD), 2019 U.S. Dist. LEXIS 223132 (D.N.J. Nov. 4, 2019), ruling on a dispute between the parties on the General Data Protection Regulation of the European Union. The parties could not agree on a Discovery Privacy Order to address the redaction and protection of the private data of EU citizens. The Defendants argued that the Plaintiffs' proposed order would not comply with the GDPR because it prohibited the redaction of professional contact information of EU citizens. The Plaintiffs' order only called for the redaction of objectively irrelevant information. The Plaintiffs also objected to the Defendants' call for meet and confers on redactions pursuant to the GDPR throughout discovery.

Special Master Cavanaugh reviewed the applicability of the GDPR under the five factor test provided by Restatement (Third) for Foreign Relations Law § 442 in order to evaluate whether or not foreign laws barring disclosure should be observed.

1. The names, positions, and contact information of Defendants' employees were directly relevant to claims and defenses and so showed the requested evidence was important to the litigation.

2. Because the Plaintiffs' order would require the redaction of personal information of an intimate nature, the special master found that the request was specific enough to favor disclosure.

3. The special master assumed that most of the documents to be produced by Daimier originated in Germany, and hence this would weigh against disclosure even though some documents with personal information were found to come from the United States.

4. The Defendants were not shown to have a means of obtaining information about the employees through alternate means.

5. Because the suit alleges violations of the RICO Act and fraudulent concealment by misleading customers about the environmental impact of diesel vehicles, it is shown that noncompliance with the discovery request would be against the important interests of the United States.

These factors led to this conclusion: "Special Master believes the Discovery Confidentiality Order provision allowing a producing party to designate and protect as 'Highly Confidential' information that the producing party claims to be Foreign Private Data—such as employee names, sufficiently balances the EU's interest in protecting its citizens private data and the U.S. legal system's interest in preserving and maintaining the integrity of the broad discovery provisions set forth in the Federal Rules of Civil Procedure." Id. at *15.

In reaching his decision, the special master also noted that there have been no EU GDPR enforcement actions relating to violations stemming from legal cases.

The order bars the parties from redacting the names, titles, and contact information of Defendant and third party employees.

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