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11 Bus. L. Int'l 123 (2010)
Cross-Border Challenges for E-Discovery

handle is hein.journals/blawintnl11 and id is 129 raw text is: 123 Cross-border Challenges for e-Discovery Seth Berman* Cross-border electronic discovery (or disclosure as it's called in the UK context) is becoming increasingly common and increasingly fraught with peril. As the scope of international business and US discovery expands, litigants in US courts need to collect, cull, review, analyse and ultimately produce ever-growing amounts of electronic data. Often this data does not reside in the US, but nevertheless is relevant to US litigation. This effectively expands the reach of US discovery rules to other countries, including countries that take a remarkably different (and often dim) view of US discovery practice. This article explores the potential pitfalls facing a corporation dealing with cross-border electronic discovery matters, and suggests different strategies to address these difficulties. Electronic discovery and US litigation Courts in the United States (US) take a very broad view of the need to preserve, review and produce material relevant to US litigation. Under US civil procedure rules, a litigant needs to begin preserving data relevant to a lawsuit as soon as they know a lawsuit is likely to occur. More worrisome for cross-border litigation is the scope of this preservation requirement. In the words of Rule 26 of the Federal Rules of Civil Procedure: 'Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defence - including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter.' In practice, this means that at the request of the opposing party, litigants must be prepared to scour their own electronic and other records (and * Seth Berman, Managing Director, Stroz Friedberg Ltd.

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