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Cross-Border eDiscovery: Complexities of International Data Sources and Data Protection Laws

May 16, 2024

The swift growth of technology has prompted a dramatic shrinking of the global economy—seemingly overnight. Organizations are no longer limited by geographical boundaries, and as a result, corporations can expand their reach across international borders. This growth, however, does not come without significant challenges, particularly in the world of cross-border eDiscovery.

Challenges of Cross-Border eDiscovery

The need for multinational corporations to gather and review documents from different jurisdictions for investigation and litigation purposes is not new. Yet, the global regulatory landscape has swelled dramatically over the past several years, along with the ever-increasing amounts and types of discoverable ESI and privacy concerns. As a result, corporations that operate across borders must overcome numerous legal, logistical, and linguistic hurdles when time is short, and budgets are tight. 

Regulatory Environment

Non-compliance with cross-border compliance requirements or local laws, standards, and policies can lead to substantial fines, reputational damage, litigation, and loss of clients. According to the International Association of Privacy Professionals, (IAPP), 71 countries have drafted or standardized contractual clauses for international data transfers. Companies can encounter significant challenges when it comes to cross-border compliance. Global organizations will be better prepared to navigate diverse regulatory laws and standards by leveraging regulatory technologies and establishing robust internal controls to monitor cross-border compliance issues.

Jurisdictional Issues

Global litigation often presents significant challenges for organizations facing enforcement action in more than one jurisdiction. As expected, foreign jurisdictions have their own rules governing the discovery of electronically stored information (“ESI”) which often may conflict with the Federal Rules of Civil Procedure and America’s broad discovery policies. However, careful planning, research, deliberate decision-making, and consultation with local counsel in the relevant foreign jurisdiction are the keys to approaching these challenging issues. Innovations in legal technologies that manage ESI also present technology and workflow options to mitigate compliance risk. 

Data Privacy

Among the many legal challenges to conducting discovery overseas, data privacy protection legislation can be particularly challenging when the data a company needs to collect, review, and produce originates in a jurisdiction where the data subject’s rights regarding Personal Data are protected. The risks of non-compliance with data privacy regulations have dramatically increased in Europe with the introduction of the General Data Protection Regulation (GDPR) and its associated fines. However, encryption, access controls, and data anonymization techniques can help protect personal data. In addition, litigants can leverage workflows to address GDPR principles of necessity and proportionality.

Multiple Languages 

Language barriers can cause substantial issues for cross-border eDiscovery. According to the Association of Certified E-Discovery Specialists (ACEDS), “The complexities of language and translation can make it difficult to understand and analyze electronic data in foreign languages. Cultural differences can also impact the interpretation and analysis of data, potentially affecting the accuracy and effectiveness of the investigation.” However, multilingual e-Discovery is a specialized technology that enables teams to collect, process, review, and produce ESI in multiple languages. Advanced translation tools and machine learning algorithms help eDiscovery specialists comprehend and evaluate foreign language data.

Consistent Processes

Due to rising globalization and the focus on data privacy rights, the challenges of cross-border eDiscovery will continue to increase over time. However, corporations that invest the time in building internal processes and procedures to respond to these challenges will be able to significantly reduce the risk and cost involved in handling cross-border eDiscovery and increase the speed with which they can respond. A practical global eDiscovery playbook will guide eDiscovery teams through data collection, processing, hosting, and review, and help ensure that best practices—on a worldwide basis or adapted for a specific jurisdiction—are utilized.

Foreign Custodians

Determining whether foreign custodians have potentially responsive data can be challenging, particularly when the custodians live halfway around the world and speak a different language. Under these circumstances, the risk of misinterpreting requests for information is intensified. However, translators who are fluent in the language can transcend the language barrier. Working with an eDiscovery specialist with native speakers on staff with the technical intelligence and sensitivity to facilitate discussions with foreign custodians and IT personnel adds defensibility to the identification process.

Predictive Coding

Corporate counsel increasingly expect outside counsel and service providers to use analytic techniques such as predictive coding to deal with ever-increasing data sets. However, foreign languages often complicate the task, particularly when documents contain multiple languages. Automated language identification, tokenization (converting text into small parts known as tokens) and proprietary document scoring techniques can be used to sort and rank huge foreign language document collections. These approaches can enhance defensibility, reduce the risk of misunderstanding the results, and help design an effective model to handle English and non-English data sets.

Keyword Search

Foreign language data can also challenge those relying on keyword searching in litigation or regulatory response efforts. Literal translation is not always effective in searching foreign language data sets. When keywords are interpreted by parties inexperienced with the matter and the related data, those terms are run against the foreign data corpus, and the results can be somewhat inaccurate. One way to improve results is to have native speakers from the local jurisdiction discuss the concepts and issues regarding the keyword search with U.S. and local counsel to develop a more effective set of keywords for the non-English language data set.

CDS Provides International & Cross-Border Expertise

CDS provides eDiscovery advisory, collection, processing, and hosting solutions for clients worldwide who require compliance with the complexities of data privacy laws in-country and across international borders.

  • CDS has managed eDiscovery projects on six continents and in all EU member states.
  • Our RelativityOne Certified Partner status facilitates eDiscovery projects in available countries.
  • CDS deploys a proprietary mobile appliance to address cross-border eDiscovery challenges.

There is little doubt that cross-border eDiscovery presents numerous challenges. CDS provides a full range of advisory services related to executing forensic collections that cross jurisdictional borders. To discuss how we can streamline your organization’s response, contact us at  for a consultation today.

About the Author

<a href="https://cdslegal.com/team/william-wallace-belt-jr/" target="_blank">William Wallace Belt, Jr., Esq.</a>

William Wallace Belt, Jr., Esq.

Bill has 25 years of experience as a partner, shareholder and board member of AmLaw 200 law firms, including Williams Mullen where he built one of the first law firm eDiscovery practices. For the last 10 years Bill has participated in and now runs a Corporate-Only Roundtable where corporate eDiscovery teams, judges and industry experts have met to share experiences and discuss emerging challenges and solutions that combine technological and legal solutions.