In the United States discovery is conducted by the parties, but most European nations view it as a judicial function. Europeans also regard personal privacy as an inalienable right. Laws such as the European Data Protection Directive and national “blocking statutes” restrict or even criminalize the transfer of personally identifiable data outside of Europe. Conflicts between European privacy laws and American discovery rules can create a dilemma for transnational litigants. A litigant may face civil or criminal liability under European law if it produces data from Europe in discovery, but sanctions from an American court if it does not.
An international discovery agreement among litigants can help resolve these conflicts. When incorporated into a protective order, such an agreement can extend the protection of European privacy laws to discovery even after it is transferred to the United States.
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