August 28, 2013
In a previous blog series I discussed e-discovery in the instance of cross-border litigation, but what about discovery that takes place completely out of the context of US discovery rules? In this series I will look at e-discovery in the context of foreign and non-judicial contexts.
Evidence production differs significantly between common law and civil law jurisdictions. Discovery in common law jurisdictions is characterized by its broadness. In terms of scope, discovery requests can be for any and all non-privileged information relevant to the case. The parties do not need to specify the content of the document or to provide any other information such as its location. Requests can also apply to third-parties not otherwise a part of the ligation. Production of evidence may be compulsorily requested. Finally, the justification for production is to gather information necessary for a fair result.
Conversely, evidence production in civil law jurisdictions is characterized by its required level of specificity and narrow scope. In civil law jurisdictions such as France, only specifically identified documents requested by parties can be produced. This identification generally must include information as to the document’s content and location. A request involving a third-party must be specific and is issued separately. In civil law jurisdictions the justification underlying discovery is the need to support the parties’ allegations, hence the requirement for specificity.
Generally, a request for discovery of documents issued by a foreign country will be enforced in a civil law country as a Letter of Request. A civil law court might restrict the content of the request for discovery in order to comply with its public policy, and thus, be enforced. Common law courts will take into consideration in their judgment the unjustifiable failure of a party to supply the documents or information requested.
A number of statues exist that require a duty to secure personal data over the obligation to disclose information. A few examples include, the European Directive 46/95/EC, the German Federal Data Protection Act, British Data Protection Act of 1998, Law No. 80-538 of July 16, 1980 in France, and the Personal Data Protection Act No. 25.326 and Regulation approved by Decree No. 1558/2001 in Argentina.
In the coming blog posts I will discuss these statutes, as well as expand the analysis by looking at specific civil law countries and the non-judicial use of e-discovery.