…wasn't playing Jai Alai…he was attorney Browning E. Marean III from DLA Piper, who deconstructed international e-discovery for 90 minutes…
Sorry for the break, folks. The long weekend got longer and longer…and then there was Monday…
'Lotta traffic on my sites – everyone's interested in the new "Act"…but I gotta get back and finish my piece on international e-discovery from LegalTech I promised you last week.
I've had my eye on this subject for a while. I spent half my life living outside the United States – so of course I have some perspective on it – but I don't think that matters much. It may not happen tomorrow or the next day, but it will happen. Some day, you'll face an issue that involves a foreign nation. When that day comes, you've got at least three issues:
- Language – if you're lucky and the other country is also an English-first nation, that'll solve one big problem, eh?
- Laws – if you act as if you're in the United States, you could receive a big fine and face jail time.
- Technology – more on that later.
There I go, harping on the criminality angle again…but here's a real world example for you…
A seemingly innocent violation of the law may bring a penalty of 10,000 Euros and six months in jail. Lesson learned: know what you're doing before you set foot on foreign soil – or hire someone who does!
But I'm getting ahead of myself. Mr. Marean was joined on the panel by George I. Rudoy, Director of Global Practice
Technology & Information Services for Shearman & Sterling. Also present was Michael R. Polin, Esq. from the International Law Firm
of Michael R. Polin.
Foreign nations (by the way, yes, Canada does qualify as a foreign nation for our purposes) have Blocking Statutes. You do not want to violate them or you may face penalties as described above.
A primary issue is what to do with a foreign document when you want to 'take it back to the office'. Many countries have strict definitions of what "taking a document out of the country" means. Is it theoretical? Is it physical? These are the details you must know before you act. It harkens back to Constitutional Law; what is a "taking"?
This of course begs the question, if you can't take it out of the country, how will you get it into evidence? A custodian? A notary? An intermediary? May a third-party testify that they're examined the document?
Another major issue; what is "privacy"? Unlike the US, many foreign nations don't believe that privacy ends where the corporate entity begins. They consider data generated by employees to be "personal data" and therefore subject to privacy laws. Be ready for this.
What about technical matters? ASCII contains 128 characters. International documents that involve Unicode may contain thousands upon thousands of characters. Do you have the technology in place to be able to translate these documents?
And while we're on the subject, do you have a translator?
A lot of questions that you need to answer. Dang it! I can't even use the catchy finish that if you don't it'll all be 'lost in translation' because I already used it a long time ago…