Before Motioning for E-Discovery Sanctions, Exhaust All Alternative Remedies

Rollins Ranches, LLC v. Watson (D. S.C. May 22, 2020) re-emphasizes that when it comes to U.S. litigation, U.S. discovery rules will often override any foreign privacy law like the GDPR. If you’re going to try to fight against producing foreign data and want any chance of winning, make your arguments in accordance with the Aerospatiale 5-factor balancing test.

Overview:

In this dispute between dog training businesses, the plaintiff sought access to the defendant’s social media and email accounts.

Specifically, the plaintiff wanted to compel this access to showcase the “history of admitted defamation and tortious interference was recorded in social media posts discovered by the Plaintiffs.” Originally, the defendant permitted access to her accounts but was that ceased when the defendant made the Facebook page private.

Defendant argued that she did not need to permit access because the United Kingdom Protection Act (i.e. GDPR).

Ruling:

• Rejected Defendant's GDPR Argument. The court rejected the GDPR argument based on two primary reasons: (1) “[i]t is well settled that [foreign] statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though that act of production may violate that statute” and (2)”[t]ypically, the party resisting the discovery burden bears the burden in these cases.
  
• Defendant Did Not Prove Her Claim. The defendant offered no evidence that supported the “Defendant’s position and no further information is provided by Defendant as to the applicability of the act.
  
• Court References Aerospatiale. Often used by courts as the test to determine if foreign laws override U.S. discovery rules, the Aerospatiale case offers a 5-factor balancing test when deciding which laws apply.
  

Expert Opinion from David Cohen, Esq., Chair of E-Discovery Group, Reed Smith LLP

"Parties resisting discovery based on foreign privacy laws can face an uphill battle to educate courts about those foreign laws, and associated risks. Proposing discovery alternatives short of complete non-compliance can help. Here the pro se defendant’s claims and arguments were found not to be sufficiently credible or supported."

Case Law Tip:

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