The Face-Off Between Data Privacy and Discovery: Why U.S. Courts Should Respect EU Data Privacy Law When Considering the Production of Protected Information

Abstract

When foreign parties involved in U.S. litigation are ordered to produce information that is protected by EU data privacy law, they are caught in an unfortunate “Catch-22.” Historically, U.S. courts have pointed to the unlikelihood of sanctions for data privacy law violations to justify these orders. EU data privacy law, however, has recently undergone several shifts in favor of tougher rules and significantly increased sanctions. Additionally, EU regulators are now more vigilant and active in enforcing these laws. These developments, combined with the benefits of international judicial respect and the intrinsic value of privacy, mean that U.S. courts should more strongly consider EU data privacy law in discovery deliberations. This Note argues that courts should more heavily weigh the interests of foreign nations and the hardship on foreign litigants when contemplating discovery orders and, when appropriate, order discovery to be conducted through the Hague Evidence Convention rather than by the foreign party.