In January 2017, The Sedona Conference Working Group on International Electronic Information Management, Discovery, and Disclosure (WG6) issued the much-anticipated International Litigation Principles on Discovery, Disclosure & Data Protection in Civil Litigation (Transitional Edition). This publication updates the 2011 International Litigation Principles, which preceded the 2013 Snowden revelations and the Schrems decision invalidating the U.S.-EU Safe Harbor. It also incorporates adoption and implementation of the EU-U.S. Privacy Shield, and the approval of the EU General Data Protection Regulation (GDPR), which is set to replace the 1995 EU Data Privacy Directive in May 2018. Many of these developments are consistent with the focus on “proportionality” of discovery in the 2015 amendments of the U.S. Federal Rules of Civil Procedure.
Given the complex and dynamic EU data protection landscape – where the new Privacy Shield has not been tested, and before the GDPR has even taken effect, – WG6 has aptly designated this as a “Transitional” edition. This edition provides interim best practices and practical guidance for courts, counsel and corporate clients on safely navigating the competing and conflicting issues involved in cross-border transfers of EU personal data in the context of transnational litigation and regulatory proceedings. Following are the publication’s Six Transitional International Litigation Principles: