Cross-Border E-Discovery: Challenges and Lessons to be Learned

In a recent blog post on cross-border e-discovery, Sasha L. Hefler and Chris Dale discuss the differences between discovery in the United States and abroad, and the resulting challenges. As they point out, discovery in the United States is much more broad than other common law countries, which put limits on discovery in terms of scope—requiring proportionality—and use of personally identifiable information and other private data. While such differences in approach pose challenges in terms of cross-border discovery, these differences may also hold lessons to be learned for those looking to achieve more reasonable and proportionate discovery here in the United States.

In our recent report, Allocating the Costs of Discovery: Lessons Learned at Home and Abroad, we look to approaches in other countries for commonalities and lessons that can be learned in the area of cost allocation. Two important aspects of the UK Civil Procedure Rules that Hefler points out, and which are highlighted in our report, are the requirement that discovery be proportionate and that judges manage cases actively, so that the costs are kept reasonable in the first instance. These are also key themes of the proposed federal rule amendments, currently under consideration by the Supreme Court.