In the U.S. District Court for the Southern District of New York, five female plaintiffs bring a lawsuit against an international advertising firm with a public relations subsidiary in the United States, asserting claims of systemic, company-wide gender discrimination. As part of discovery, the plaintiffs seek the electronically stored information (ESI), including emails, of the company’s CEO, who is based in France. Can the plaintiffs collect and produce this data in the course of the litigation without violating France’s data privacy laws and blocking statute, which prohibit French companies from disclosing personally identifiable information?
This is the backdrop to Da Silva Moore v. Publicis Groupe, No. 11 Civ. 1279 (ALC) (AJP), 2012 U.S. Dist. LEXIS 23350 (S.D.N.Y. Feb. 24, 2012), a case that has been extensively noted for its approval of technology-assisted review while the thorny discovery issues involved have been largely overlooked. In today’s global economy, litigants in U.S. courts increasingly need information created abroad in response to discovery requests and subpoenas. Furthermore, with the advent of cloud computing, litigants face additional challenges when accessing data that originated overseas. And unlike in the United States, where courts presumptively grant access to information so long as it is reasonably calculated to lead to the discovery of admissible information, a complex web of international laws governs the disclosure of information created and stored outside the United States, driving up the costs of litigation and posing significant delays in the litigation process.
