US Electronic Discovery- Concerns in Europe (France)

von Dr. Axel Spies, veröffentlicht am 23.01.2008

The French Data Protection Agency CNIL puts the US practices/ rules governing the collection personal for legal proceedings in the US on the front burner. In a new statement, the CNIL defines four areas of concern:
(a) Litigation hold/ litigation freeze": US law requiring French companies to retain personal data in case of a threatened litigation in the US;
(b) "Pre-trial discovery": The CNIL defines this category as data collection and "exchange" before a US trial - in particular through online tools "contrary to the French rules of civil procedures"
(c) "Injunctions by public US authorities": Under this category the CNIL lists the orders by US authorities (DoJ, SEC) to retain personal data, no matter where the data is located, for US investigations; and
(d) "Creation of a new criminal act of "information destruction": The CNIL states that US Congress "recently has penalized the destruction of documents with the intention to hamper ongoing inquiries." These rules would also cover European affiliates.

The CNIL announces that these obligations give raise to various concerns under "French and European laws", in particular data protection law. It seems that some companies in France have complained to the CNIL, expressing their concerns, in particular, about potential violations of trade secrets caused by the disclosure of information that they must provide under the four categories CNIL states that is will focus on these issues not only in the framework of the Article 29 Working Party, the EU body of representatives of the European Data Protection Agencies, but also on an inter-ministerial level in France. Given the aggressive stance of CNIL in the matter of international whistleblower hotlines, this initiative could cause significant legal concerns.Link (in French):[uid]=512&cHash=0b7756c4aa

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