Post Process

Everything to do with E-discovery & ESI

Between a rock and a hard place

Posted by rjbiii on October 25, 2007

Electronic discovery can be a complex matter. The discretion given to individual courts, the demeanor of opposing counsel, the difference in procedural rules between circuits, the manner in which the relevant data enterprise is structured, and other factors can make the entire process quite confusing. Throw in international rules that serve to prohibit production, and according to a recent article on law.com, counsel can find himself (or herself) damned if he does (produce) and damned if he doesn’t. The article focuses on the case of Columbia Pictures Industries v. Bunnell, in which not only did a district court judge conclude that data stored in “RAM” was discoverable, but that producing the data was necessary although that doing so was, at least for some of it, prohibited under the law of The Netherlands. From the article:

The defendants had objected to preserving and producing the Internet protocol addresses in part because that would violate the law of the Netherlands, where their servers were located — in particular, the Netherlands’ Personal Data Protection Act. But Chooljian ruled that the defendants still had to preserve and produce the data.

Their argument was undercut by the fact that, due to recent operational changes, the data for U.S. users were apparently on U.S. servers. However, even if the data were overseas, Chooljian concluded that “it was not clear that the Netherlands’ Personal Data Protection Act applies.”

Finally, Chooljian found that even if the Dutch law did prohibit disclosure of the information, it did not deprive the court of its power to order production and preservation of the data.

The article opines that the court’s decision to require the production of data held in RAM will not be followed, but is troubled with the idea that the court’s holding on the production of data despite legal prohibitions on doing so may be more in line with general judicial opinion. These conflicts will become more commonplace because of the international scope of business, developments in digital systems, and increased legislation over such matters as data protection. The article ends with some pointers, which are worth thinking about.

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