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The Sedona Conference: Suggested Balancing Test for Cross Border Discovery Requests

Posted by rjbiii on March 5, 2009

Ideally, determining the scope of cross-border discovery obligations should be based on a balancing of the needs,
costs and burdens of the discovery with the interests of each jurisdiction in protecting the privacy rights and welfare
of its citizens. The following factors should be considered in this balancing:
1. The nature of the data privacy obligations in the jurisdiction where the information is located;
2. The obligations of the responding party to preserve and produce relevant information in the
jurisdiction where the dispute is filed and the jurisdiction where the data is located;
3. The purpose and degree of custody and control of the responding party over maintaining the
requested information;
4. The nature and complexity of the proceedings;
5. The amount in controversy;
6. The importance of the discovery to resolving critical issues; and
7. The ease and expense of collecting, processing, reviewing and producing relevant information,
taking into account:
a. the accessibility of the relevant information;
b. the volume of the relevant information;
c. the location of the relevant information;
d. the likelihood that the integrity and authenticity of the information will be impaired by
the discovery process; and
e. the ability to identify information that is subject to foreign privilege and work product
protection from disclosure.

The Sedona Conference, Framework for Analysis of Cross Border Conflicts 34 (Aug. 2008). (Registration Req’d).

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