Stuck in the Middle with You: When U.S. Discovery Orders Hit the GDPR

Abstract

Civil litigants in the United States have broad rights to information—from each other and from others not involved in the litigation, whether or not they are within the U.S.. Other countries often have more limited “discovery” rights, and often have confidentiality or privacy laws that restrict sharing information or transferring that information across borders, like the GDPR. This often generates conflicts for those who are required by U.S. law to deliver evidence but forbidden to do so by their own local law. In fact, U.S. law permits those litigating cases in non-U.S. venues to use its generous discovery rules where the person from whom they seek information resides or is found in the U.S.. So cross-border discovery conflicts do not always come from litigation in U.S. Courts.