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Litigants navigating the conflict between U.S. discovery obligations and foreign data protection laws have a new ally, the American Bar Association (“the ABA”). The ABA recently passed Resolution 103, which “urges” that:

[Içinde]here possible in the context of the proceedings before them, ABD. federal, devlet, territorial, tribal and local courts consider and respect, uygun olarak, the data protection and privacy laws of any applicable foreign sovereign, and the interests of any person who is subject to or benefits from such laws, with regard to data sought in discovery in civil litigation.

The full text of the resolution and accompanying report ("Rapor") can be found here.   In supporting its resolution, the ABA noted that “[l]itigants often face a Hobson’s Choice: violate foreign law and expose themselves to enforcement proceedings that have included criminal prosecution, or choose noncompliance with a U.S. discovery order and risk U.S. sanctions ranging from monetary costs to adverse inference jury instructions to default judgments.” Report at p. 2.   As “U.S. law already provides a clear and workable standard for resolving the conflict” the ABA believes that Courts should give more consideration “to the national interests behind the non-U.S. laws” such that the comity factors are weighed and applied “in a manner that demonstrates respect for those laws and the principles of international comity.” Report at p. 17.

The ABA’s involvement with this issue is particularly timely, as it has recently become apparent that new data analytic technologies have weakened the effectiveness and reliability of anonymization, one of the primary mechanisms available to litigants to navigate cross border discovery conflicts. See e.g., The Practice of Law in the Age of Big Data, Nat. L. J., Nisan 11, 2011.

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