Stormy Digital Weather Ahead: The Forecast for Cross-Border eDiscovery in the Context of Litigation and Regulatory Investigations

Abstract

We live in a digital world. Today, information is power, and electronically stored information (“ESI”) is its global currency. It is a world where well over 90% of information is created, transmitted and stored in electronic form. And it is a world where email, instant messaging, mobile devices and social media platforms such as Facebook® and Twitter® have become the lifeblood of corporate communication and collaboration. These platforms frame how organizations do business; they impact virtually every major corporate decision and action that might be the future subject of civil or criminal scrutiny. This article examines the clash of cross-border discovery with global data privacy and protection laws, and the perfect storm that it can create for compliance. It also attempts to forecast the stormy digital weather ahead for international in-house counsel by examining some of the major challenges of navigating these conflicting and competing forces.