Knouff reminded the audience that jurisdictions vary on what can be admitted, and that in many countries, there is no pre-trial discovery at all.
A major challenge arises in multi-country litigation when countries have mutually-exclusive requirements, the panelists noted. "Dealing with jurisdictions where companies are compelled to destroy personal information can be difficult," said Pinguelo. And "exception to hearsay" rules, limits on legal holds, and attempts to consider proportionality as a factor can create havoc, the panelists noted.
But moderator Rashbaum assured the audience that "there are ways around these problems and conundrums." Offered Mendelsohn: "Records management and retention and email policies help." Be sure employees understand legal holds, and understand their responsibilities, she said. Make sure employees know how long to keep documents, especially for sensitive information. "Leverage your in-house and in-country people and tools." Companies, she said, should consider in advance how you will process and cull data, depending on the risk and the volume.
A strong message resonated through several comments: lawyers should act swiftly. "Approach adversaries early," advised Pinguelo. Scheindlin urged the audience to be proactive with the court. "It's your job to educate the judges," she said. "We on the judiciary are blissfully unaware of these problems. Many judge have no experience with foreign laws."
Litigators, Scheindlin suggested, should focus on the parties, rather than non-parties. Judges, she said, can make demands on parties. And if different rules and jurisdictions are at play, "it's your job to raise the issues" to the court. And "raise the issue quickly at the Rule 16 conference," said Scheindlin, referring to pre-trial meetings required by the Federal Rules of Civil Procedure. "It's all about education and raising the issue early."
Scheindlin acknowledged that some countries' rules will not sit well with American litigators, especially privacy requirements that allow employees to review and remove personal data. "We don't like that," she said, citing as an example how a supervisor accused of harassment could expunge emails that would substantiate the allegation.
The panel wrapped up the discussion with a quick overview of foundational elements, including authenticity, reliability, hearsay exceptions, and the best evidence rule. Scheindlin offered a very pragmatic piece of advice: "Review the Federal Rules of Evidence before the hearings," she suggested, advising that even she does so before hearings to stay fresh on its nuances.
Monica Bay is editor-in-chief of Law Technology News and a member of the California bar. Twitter: @lawtechnews @LTNMonicaBay.