Stormy Digital Weather Ahead: The Forecast for Cross-Border eDiscovery in the Context of Litigation and Regulatory Investigations

M. James Daley, Esq., Co-founder, Daley & Fey LLP, USA
Alison Wisniewski, Senior Legal Counsel, EPIQ Systems, Inc., USA
Jayne Rothman, Vice President, Corporate Counsel, EPIQ Systems, Inc., USA

We live in a digital world. Today, information is power, and electronically stored information (“ESI”) is its global currency. It is a world where well over 90% of information is created, transmitted and stored in electronic form. And it is a world where email, instant messaging, mobile devices and social media platforms such as Facebook® and Twitter® have become the lifeblood of corporate communication and collaboration. These platforms frame how organizations do business; they impact virtually every major corporate decision and action that might be the future subject of civil or criminal scrutiny. This article examines the clash of cross-border discovery with global data privacy and protection laws, and the perfect storm that it can create for compliance. It also attempts to forecast the stormy digital weather ahead for international in-house counsel by examining some of the major challenges of navigating these conflicting and competing forces.

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USA e-Discovery General October 2013 Vol. 7, No. 25, Autumn 2013

M. James “Jim” Daley

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M. James “Jim” Daley, Esq., CIPP/US is co-founder of Daley & Fey LLP, a boutique law firm devoted to helping clients reduce legal risk, contain cost, and ensure compliance with records management, electronic discovery and data privacy obligations. Jim serves as a trusted advisor for a wide variety of Fortune 500 clients, as was profiled in 2010 by The American Lawyer as “Who You ‘Gonna Call” for national coordinating e-discovery counsel. Jim is also frequently selected as an Independent Expert by courts, clients and other counsel to evaluate corporate e-discovery, records management and data privacy conduct. Jim leverages over 30 years of complex litigation experience, his Master’s Degree in Information Systems, and his experiences as Co-Chair of The Sedona Conference® Working Group Six on International Electronic Information Management, Discovery and Disclosure (2005-2012) to help U.S. and multi-national clients develop practical, cost-effective solutions to records and information management, e-discovery, and data privacy compliance challenges. Jim and his team help clients develop and implement process and technology solutions including: data privacy and security controls; disposition of legacy electronic media and print information; e-mail archiving and electronic records management solutions; legal hold management and compliance monitoring solutions; RIM policy and procedure; RIM and legal hold training; U.S. and global records retention schedules; selection of preferred vendor panels; and litigation and regulatory compliance readiness programs, among others. Jim also helps global companies successfully navigate the risk and costs of cross-border transfers of data in business, legal and regulatory contexts, as well as cloud computing, social networking and other emerging technologies. Jim is a frequent author and speaker on records management, e-discovery and data privacy issues. His service and publications include: Past Co-Chair of The Sedona Conference® Working Group Six on International Electronic Information Management, Discovery and Disclosure (2005-2012); Senior Editor of “The Sedona Conference® International Principles on Discovery, Disclosure and Data Protection” (2012); Author of “Information Age Catch 22: The Challenge of Technology to Cross-Border Disclosure and Data Privacy”, 11 Sedona Conf. J. 121 (Fall 2011); Contributing Author of the first German-language treatise on e-discovery: “E-Discovery im internationalen Rechtsstreit und Datenschutz” Erich Schmidt Verlag, Berlin (2011); and Co-Editor-in-Chief of “The Sedona Conference® Framework for Analysis of Cross-Border Discovery Conflicts: A Practical Guide to Navigating the Competing Currents of International Data Privacy and E-Discovery” (2008).

Alison Wisniewski

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Alison Wisniewski is Senior Legal Counsel for Epiq Systems, Inc. and its subsidiary companies. At Epiq, Ms. Wisniewski works on general corporate matters including sales transactions, commercial transactions, mergers & acquisitions, data privacy, compliance, risk management, intellectual property, and transactional employment matters, among other things Prior to joining Epiq in 2010, Ms. Wisniewski practiced in house at an asset management company called Crown Northcorp in White Plains, NY, where she assisted the FDIC in the dissolution of various banks throughout the country. Ms. Wisniewski has also practiced at Kramer Levin Naftalis & Frankel LLP and Sidley Austin LLP, each in New York, NY, representing corporate and private equity clients in various matters including mergers & acquisitions, securities filings and corporate governance.

Jayne Rothman

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Jayne Rothman is Vice President, Corporate Counsel for Epiq Systems, Inc. and its subsidiary companies. At Epiq, Jayne manages general matters including corporate, mergers & acquisitions, commercial transactions, litigation, employment, data privacy, compliance, risk management, insurance, intellectual property, and management of outside counsel, among others. Prior to joining Epiq in 2005, Ms. Rothman practiced at Dewey LeBoeuf LLP in Los Angeles, where she represented ABC/ESPN and creditors in the Worldcom and United Air Lines Chapter 11 cases, and at Weil Gotshal & Manges LLP in New York, representing corporate M&A and restructuring clients including Enron Corp., Hughes Electronics Corp., Old Mutual Plc and Six Flags, Inc. Ms. Rothman also clerked for two years for Chief Judge Mark W. Vaughn, U.S. Bankruptcy Court, D. N.H.

Daley & Fey LLP

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Daley & Fey LLPis a boutique law firm withspecialized expertise in the areas of e-discovery, data protection and privacy, records governance, information technology and data security.Daley & Fey’s lawyers and analysts are dedicated to helping organizations reduce legal risk and cost and enhance compliance with information laws and regulations, including data protection and privacy regulations, regulations governing records retention, and rules and laws governing e-discovery. Daley & Fey’s lawyers and technologists assist U.S. and multi-national corporations in a wide variety of industries, including but not limited to healthcare, insurance, media, manufacturing, retail, food & beverage, pharmaceutical and medical device, travel, technology and financial services, in developing reasonable, right-sized solutions to a multitude of U.S. and international records governance, e-discovery and data privacy challenges.

EPIQ Systems, Inc.

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Epiq Systems is a leading global provider of technology-enabled solutions for electronic discovery, bankruptcy and class action administration. We offer full-service capabilities to support litigation, investigations, financial transactions, regulatory compliance and other legal matters. Our innovative technology and services, combined with deep subject-matter expertise, provide reliable solutions for the professionals we serve.

USA e-Discovery General October 2013 Vol. 7, No. 25, Autumn 2013