September 11, 2013
As discussed in the previous post, civil law jurisdictions have a different approach to discovery due to the focus on specificity and broad-based rules against sharing of data. One of those regulations is the European Directive 46/95/EC
Article 7 states: ‘Member States shall provide that personal data may be processed only if: (a) the data subject has unambiguously given his consent; or (b) processing is necessary for the performance of a contract to which the data subject is party or in order to take steps at the request of the data subject prior to entering into a contract; or (c) processing is necessary for compliance with a legal obligation to which the controller is subject; or (d) processing is necessary in order to protect the vital interests of the data subject; or (…) (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed; or (f) processing is necessary for the purposes of the legitimate interests pursued by the controller or by the third party or parties to whom the data are disclosed, except where such interests are overridden by the interests for fundamental rights and freedoms of the data subject which require protection under Article 1 (1).’
The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters
The Hague Convention has its own rules with regards to evidence gathering. Local rules apply to the extent that evidence abroad shall be obtained under the law of place where the evidence (document) is located. However, the party seeking discovery may request the application of the law of the place where the claim has arisen for the collection of evidence. Such requests may be granted by civil law courts, “unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties”
Article 9 of the Hague Convention states that, “The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed. However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties. A Letter of Request shall be executed expeditiously”.
The combination of European regulations covering the dissemination and exportation of personal information can cause a host of problems when litigating outside of the European Union.