International eDiscovery: Foreign Discovery Requirements
Electronic Discovery (eDiscovery) has increasingly become a global concern. Despite major developments in eDiscovery technology, data collection and analysis are more complicated as a result of rapidly increasing data volume, the diversity of data types, the proliferation of data around the world, and the growing restrictions by national governments on data privacy and cross-border data transfers.
The Knowledge Group has assembled a panel of thought leaders to help companies understand the fundamentals and the recent developments of eDiscovery in relation with Foreign Discovery Requirements. In a live two-hour webcast, key experts will offer their fundamental viewpoints on several key issues including:
· Understanding eDiscovery challenges in global business community
· eDiscovery and its relation to Foreign Discovery Requirements
· Best practices in resolving eDiscovery main issues in Foreign Discovery Requirements both the global and local level
David C. Shonka, Principal Deputy General Counsel,
Federal Trade Commission
- Possession, custody, or control are often determinative of a party’s right to secure relevant privacy and personal information in the US, which treats such information much differently than many other countries treat it.
- While the six principles set out in The Sedona Conference’s International Principles on Discovery, Disclosure & Data Protection offer sound guidance for dealing with cross-border transfers of data in private litigation, those principles do not always work well in government civil law enforcement investigations.
- This is especially so with respect to Principles 3 & 4, which respectively deal with the scope of an inquiry and protective orders.
- In multi-national investigations, several tools, including waivers by co-operating parties, bi-lateral agreements between enforcement agencies, and special legislative provisions such as the SAFE WEB Act, can facilitate the cross-border transfer of relevant data.
- However, in cases involving non-cooperating parties or inquiries involving a single nation, principles of comity, as articulated by the Supreme Court’s Aerospatiale decision and subsequently applied by lower US courts, may determine an investigator’s ability to secure information.
Dominic Jaar, Partner and National Practice Leader, Information Management Services (Documents/Records Management, Business Intelligence & Data Analytics, eDiscovery & Forensic Technology),
- International view on discovery from a US centric or global point of view
- Rules on discovery
- Challenges of dealing with multi jurisdictional discovery, cross border and language issues
Jon M. Talotta, Partner,
Hogan Lovells US LLP
- Anticipate cross-border issues before they arise
- Companies that do business in the US, directly or through a subsidiary or affiliate, should consider US discovery rules when developing and implementing information systems, policies and procedures.
- Information location, access and control can be outcome determinative in US discovery disputes.
- Managing cross-border e-discovery requires a cross-border approach, with the goal being to avoid creating problems under a foreign state’s privacy and data protection laws while attempting to comply with US discovery rules.
- This always requires working with local counsel in the foreign state to manage foreign law requirements for collecting and transferring data to the US, as well as to provide timely notice to opposing counsel, courts, etc. in the US of limitations/restrictions imposed by foreign laws.
- This also may require documenting attempts to obtain guidance/approval/disapproval from data protection authorities, and other governmental authorities, including courts, in the foreign state to use in dealing with US opposing counsel, courts, etc.
Who Should Attend:
– eDiscovery Lawyers
– Compliance, Risk and IT Managers
– Records & Information Directors/Managers
– Privacy & Data Management Officers
– Computer Forensic Specialists
– General Counsel
– Legal Officers
– In-House Counsel
– International Counsel
– Chief Information Officers
David C. Shonka is the Principal Deputy General Counsel at the Federal Trade Commission. He has twice served as the agency’s Acting General Counsel (January – June 2009 and October 2012 – June 2013). In that position, he has been the agency’s chief legal advisor. In both roles, he oversees the Office of the General Counsel’s Litigation, Legal Counsel, and Opinions & Analysis groups, as well as the agency’s FOIA, employer-employee, and Energy Counsel staff. In addition to these roles, Mr. Shonka is a member of the Administrative Conference of the United States; and serves on the ACUS Committee on Judicial Review and on the Council of Independent Regulatory Agencies. Mr. Shonka is also a member of the Sedona Conference and serves on the Steering Committee for Working Group 1 (e-discovery and electronic records).
He has previously served as the agency’s Assistant General Counsel for Litigation. Before joining the FTC as a staff attorney, Mr. Shonka was an associate in a Washington D.C. law firm and a litigator in the Civil Division of the United States Department of Justice. In his career at the FTC, Mr. Shonka has advised the Commission on the full range of issues with which it deals, tried and argued competition and consumer protection cases in the federal district courts; tried cases in administrative proceedings, represented the Commission in appellate cases; and contributed to the government’s briefs in several Supreme Court cases.
Mr. Shonka frequently speaks at consumer finance, competition, privacy, and e-discovery conferences, both in the United States and abroad. He has also served as an instructor in various trial advocacy courses, and represented the Commission in several technical assistance missions abroad. He received his JD from the University Of Maine School Of Law in 1972; and his B.A. degree from the University of Nebraska, where he majored in English and economics.
David C. Shonka is the Principal Deputy General Counsel at the Federal Trade Commission. He has twice served as the …
Dominic is a partner in KPMG’s Forensic Practice, focusing on supporting organisations’ Information Management (IM) and eDiscovery (EDD) requirements. Dominic teaches e‑commerce and Internet law at the University of Montreal/HEC and is a guest speaker on privacy, legal technology, IT law, cross-border data flow, information management and eDiscovery at different North American universities and international conferences, such as LegalTech, the ABA Techshow, ILTA, the Masters, the eDiscovery Institute and LegalIT. Dominic has been recognized by Who’s Who Legal as one of Canada’s leading lawyer in e-commerce, privacy and Internet law.
Prior to joining KPMG, Dominic was the CEO of the Canadian Centre for Court Technology and the president of Ledjit Consulting, Canada’s leading IM and EDD firm, which was acquired by KPMG. Before founding Ledjit, Dominic was an in-house counsel at Bell Canada where he focused on eDiscovery, IT and complex litigation. Previously, he worked as a commercial litigator in one of Canada’s largest law firm.
Dominic was involved in the development of many international standards and best practices regarding IM, EDD as well as law and technology. He is on the editorial of Sedona Canada and is an active member of other working groups. He has supported a number of multinational organizations in the assessment of their IM and EDD capacity, in the development and implementation of IM and EDD strategy, policy and technology, and in-sourcing all phases of the Electronic Discovery Reference Model.
Dominic is a partner in KPMG’s Forensic Practice, focusing on supporting organisations’ Information Management (IM) and eDiscovery (EDD) requirements. Dominic …
Jon focuses his practice on complex litigation and is Chair of the firm’s Electronic Information Group, which oversees U.S. and cross-border electronic discovery and information management. He has represented U.S. and multinational clients from a variety of industries in U.S. state and federal trial and appellate courts in numerous jurisdictions; in arbitrations and mediations, including AAA, ICDR and JAMS; and in administrative proceedings and investigations, including before the U.S. FTC, U.S. DoJ, U.S. SEC, U.S. TTAB, WIPO, and several state attorneys general.
Jon also regularly counsels clients on a range of information risk issues, including records management, privacy, data security, consumer protection, litigation preparedness, intellectual property, technology, domain names and the Internet, and insurance coverage. He publishes and speaks on topics involving U.S. and international issues affecting litigation, electronic discovery, data protection and other information risks.
Jon focuses his practice on complex litigation and is Chair of the firm’s Electronic Information Group, which oversees U.S. and …
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KPMG Forensic helps organizations in their efforts to achieve the highest level of integrity and to manage the cost and risk of litigation, investigations, and regulatory enforcement actions by assisting with the prevention, detection and response to fraud, waste, abuse and other forms of misconduct, the avoidance and resolution of disputes and the collection, discovery and analysis of electronically stored information. For more information or to speak to a KPMG professional, visit www.kpmg.ca/forensic
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