This article describes both e-discovery in the United States and the German Federal Data Protection Act, the Bundesdatenschutzgesetz (BDSG). It details the conflicting demands of those institutions in the event of litigation, as well as the consequences for a company caught between them. Namely, e-discovery often requires the disclosure of vast amounts of electronically stored information held by a company, while the BDSG prohibits the disclosure of personal information outside of specific exceptions. Failure to disclose the data could result in significant sanctions in the U.S., while disclosing data can lead to large fines and constitutes a criminal offense in Germany.
Next, the article describes two ways to prevent discovery that conflicts with the BDSG: protective orders and the Aerospatiale test. A protective order requires a showing of "good cause," and the BDSG can satisfy that requirement. The Supreme Court's Aerospatiale test is used to determine when comity prohibits use of FRCP discovery. Because the Aerospatiale test references the Hague Evidence Convention as an alternative to FRCP discovery, the article then describes the Convention and how it can be used.
Finally, the authors present some advice for companies to avoid the e-discovery/BDSG conflict. This advice includes storing personal information separately from nonpersonal information, avoiding transferring information collected elsewhere into Germany, and cooperating with the opposing party and the court during the discovery process.
Oliver Forster and Osama Almughrabi,
Managing the Conflict between U.S. E-Discovery and the German Data Protection Act,
36 Hastings Int'l & Comp. L. Rev. 111
Available at: https://repository.uchastings.edu/hastings_international_comparative_law_review/vol36/iss1/2