The Odyssey of Effective Cross-Border Data Preservation

Cross-border data preservation

In Book XII of Homer’s “Odyssey,” Odysseus faces an impossible scenario as he sails through a narrow strait: He must choose between a six-headed sea monster ready to devour his men or a dangerous whirlpool where some of his crew will pay the ultimate price.

Fortunately, the Hobson’s choice faced by Odysseus was mythical. But for global organizations that must engage in cross-border discovery, the danger of deciding between two evils is all too real.

Preservation in the United States can be complex, but for companies that have cross-border data preservation duties complications rise exponentially. Parties in a number of recent cross-boarder cases have stumbled when spoliation occurs in foreign offices despite the best efforts of their domestic legal department. To avoid these problems, U.S.-based organizations and their counsel should recognize the distinctions between the European and American approaches to data privacy and follow a set of best practices to limit the amount of foreign data subject to discovery.

Read The Odyssey of Effective Cross-Border Data Preservation by Jeane A. Thomas and Brad Harris in Corporate Counsel.

About the Authors

Jeane A. Thomas is co-chair of Crowell & Moring’s e-discovery and information management group and a partner in the firm’s antitrust group. She has managed many types of e-discovery matters in both government investigations and civil litigation. She is a participating member of two Sedona Conference working groups and is a certified information privacy professional, with a focus on European regulation. Brad Harris is the vice president of products at Zapproved. He has more than 30 years of experience in the high-tech and enterprise software sectors, including assisting Fortune 1000 companies enhance their e-discovery preparedness through technology and process improvement. Prior to joining the company, he led electronic discovery readiness consulting efforts and product management for Fios Inc. from 2004 to 2009.