Category: Business/Private Enforcement
Articles: No Safe Harbor: The Effect of the Schrems Decision on Cross-Border Discovery, ABA’s Section of Antitrust Law Competition Torts Committee (Vol.12), Winter 2016
Author: Kenina Lee, Brooke Oppenheimer
In an age of globalization, cross-border disputes and litigation have become the norm. As a result, the need for U.S. companies to receive documents and data from their foreign affiliates in the course of U.S. discovery has increased exponentially. These efforts are often hampered by the unique data privacy laws that prevent the transfer of personal data to the U.S., which vary from jurisdiction to jurisdiction. The tension between broad U.S. discovery practices and the strict protection of personal privacy in the EU in particular was heightened in a 2015 case before the European Court of Justice (“ECJ”) Maximillian Schrems v. Data Protection Commissioner. The Schrems decision exposed the weaknesses in the U.S. data protection regime and effectively invalidated the “Safe Harbor Decision.” The Safe Harbor Decision had provided a framework by which U.S.-based organizations could freely receive transfers of personal data from the EU without contravening the EU Data Privacy Directive. This article analyzes the impact of the Schrems decision on the costs of cross-border discovery in U.S. litigation and the viability of alternative mechanism to complete EU-U.S. data transfers going forward.