Want proportionality? Make the producing party act first.

May 12, 2014

Here’s a modest proposal for achieving proportionality in e-discovery. Scrap the whole ridiculous skit where the request for production is the opening salvo.

Instead, change the rules so the producing party makes the first move. Yes, I know it’s a little late to suggest this when the current round of rules amendments are so far down the road, but give this some thought.

By their very nature discovery requests tend to be overbroad, if not outright bellicose, commonly fashioned from boiler-plate precedents that include demands for telegrams and dicta-belts, and setting the stage for arguments and motions by casting a far wider net than necessary.

telegram%201958
If they ask for it, you’d better look for it!

One of the two most controversial proposed amendments to the Federal Rules relates to proportionality. After the April meeting of the Rules Committee in Portland, revised Rule 26(b)(2)(1) will permit a party to

“obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.”

These well-chosen words are as good an attempt as we’ve seen to give guidance to the profession, and to address the problem of the discovery tail wagging the litigation dog because of the massive proliferation of potentially discoverable information in our electronic age.

But it won’t solve much.

This is because in the US we “request first — respond later” as set out in Rule 34. It’s always been done that way, well since 1938 anyway. Nobody has given that a second thought, neither the drafters of the latest amendments nor the thousands of public commenters, so while some details of Rule 34 will be changed, this basic paradigm was not touched. As long as it stays that way, we will still see much the same arguments over proportionality and scope, regardless of the (probably) helpful revisions to Rule 26(b)(2)(1). Because the existing model itself sets the stage for overreach and dispute.

Requesting parties issue vague and over-broad requests because the requestor doesn’t know and cannot anticipate how the opponent’s information is organized, or what range or subset might be all that’s necessary to cover all that is relevant. As a corollary to that, companies preserve electronic data more broadly than they should have to, just in case. Disputes over burden of production are misdirected from what documents really matter to what documents were over-broadly requested.

So once again I say: Make the producing party act first. That’s the way it’s done in Canada. Ontario is the largest common-law jurisdiction in Canada and the other eight English-speaking provinces usually follow its lead. So let’s look at the Ontario Rules of Civil Procedure. (Canada’s federal court system is not analogous to the US.)

Before going further, a disclosure and disclaimer: I am a dual citizen of Canada and the United States, received my J.D. from the University of Toronto, and practiced as a litigator in that city for 11 years before going into legal technology and electronic discovery consulting. I moved to Arizona in 1994. This is not a paean to the superiority of all things in Canadian law being superior to the US. Between US and Canadian law and procedure, the similarities vastly outweigh the differences. Everyone who has worked in litigation on both sides of the border would agree. But here is one seemingly minor difference in the rules that has a major beneficial impact in the practice.

Colbert-Canada
I’d never listen to anything from THIS place.

Understand first that the scope of discovery in Ontario is virtually no different from the scope in the US. Ontario Rule 30.02 reads in part:

“30.02 (1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10 whether or not privilege is claimed in respect of the document.”

(Obviously, this is not to say that privileged documents have to be turned over, but their existence must be disclosed and the reason for the claim of privilege stated, per Rule 30.03 (2)(b). How disclosure and production happens is covered in other subrules to Rule 30, and in the case of electronically stored information (ESI), also in Rule 29.1. My blog post from 2010 when Ontario Rule 29.1 was adopted covers this. )

Note that Ontario’s “Every document relevant to any matter in issue” sounds an awful lot like US Fed. R. Civ. P. 26(b)(1)’s “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.”

Where Ontario is
THIS Ontario. Not the town in California.

In neither the US or most of Canada is the scope of discovery restricted to just those documents on which a party intends to rely, unlike continental Europe.
French guy
Je vous donnerai rien!

While broad American discovery is not the norm in most of the world, neither is it unique to the US (sorry America, we’re not always exceptional), and the country that comes closest to the breadth of US discovery is Canada, at least on paper. In practice, it doesn’t go as far.

Here’s why. In Canada, they don’t start by firing off requests for production. The obligation to produce relevant documents is automatic under the Ontario Rules and falls first on the producing party.

Ontario Rule 30.03 (1) reads “A party to an action shall serve on every other party an affidavit of documents (Form 30A or 30B) disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power.” [emphasis added]

Aff of Docs
             Yes, it’s as exciting as it looks.

A later subrule describes how the affidavit should separately list documents being produced, and documents for which privilege is claimed. (In practice, for large productions documents are not individually listed, but grouped, as “emails from persons X, Y, and Z, 2009-2012” etc.)

Here come the teeth. The subrule titled “Lawyer’s Certificate,” is where attorneys have to put their name on the line:

30.03 (4) Where the party is represented by a lawyer, the lawyer shall certify on the affidavit that he or she has explained to the deponent, (a) the necessity of making full disclosure of all documents relevant to any matter in issue in the action [emphasis added again]; and (b) what kinds of documents are likely to be relevant to the allegations made in the pleadings.

Once again, this subclause (a) drives home the point that, just as in the US, everything relevant and not privileged must be produced, and moreover, Ontario lawyers had better think twice before cavalierly turning a blind eye to under-production by their clients. As for subclause (b) about what is likely to be relevant to the allegations made in the pleadings, while it might be thought that Ontario’s standards of pleading require more specificity than the US Federal Rules, that is no longer true, if it ever was, since the US Supreme Court decided Bell Atlantic v Twombly 127 S.Ct. 1955 (2007) and Ashcroft v Iqbal 556 U.S. 662 (2009).

(It might have been thought that the standards of pleading are more lax under the US so-called “Notice” pleading under Fed. R. Civ. P. 8(a)(2)”a short and plain statement of the claim”, than they are under Ontario’s Rule 25.06 (1) that “Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence…”; but the difference if ever there really was one is now non-existent ever since the two decisions above-mentioned.)

Canada-Canadian-lawyers-South-Park
Client, have you REALLY told us about all your ESI?

All right, you say. What happens in that northern utopia if the receiving party believes the opponent’s production is not complete? The same thing that happens here in the US. A motion to compel, which there is brought under Ontario Rule 30.06. But think about it. The lawyer acting for the receiving party has to think long and hard before doing that, because it in effect says to the other lawyer (and asserts to the court) “your certification was false.” The receiving party does not lightly demand more; counsel has to make a bona fide assessment whether or not the producing side has done enough to fulfill its obligations.

The psychological, social, and professional dynamic is fundamentally different just because their rule reverses who goes first.

The producing party’s initial production creates facts on the ground right away, and if the receiving counsel wants to argue it’s not enough, s/he needs some genuine basis for doing so. And contrary to a silly cultural stereotype, they will not hold back from demanding more out of politeness. Canadians aren’t that nice. Least of all, Canadian litigators. If they see a reason to suspect there’s more out there, they’ll go after it as aggressively as here in the US. But the starting point is having a reason. Lawyers who have no reason other than being a jerk develop a reputation quickly, and for them even a big city like Toronto can become a small town. Back when I practiced there, we knew who the jerks were.

(Canadians have stereotypes about Americans too. The Canadian half of me thinks my American half is stupid. My American half doesn’t care.)

Ford May 1-14
Speaking of being a jerk…

In the US, with the requesting party making the first move by a request for production, demanding too much is so commonplace that it sets the stage for a time-wasting and unnecessary proportionality or burden argument from the get-go. The imperatives of the situation US lawyers are placed in makes jerk behavior more likely, because it’s safer than failing to ask for enough.

This isn’t to say that Ontario judges don’t see fights about scope and proportionality; their rules committee has had to cover the principle of proportionality too, which means that it’s still an issue there. But the fights tend to be less common, and the volumes of ESI that are reviewed and produced tend to be less.

Again, this also isn’t to say that everything about their courts is better than here. Far from it. Complex civil cases take very much longer from commencement to trial there than they do in the US; a recent landmark decision on auditors’ liability took 12 years from initial filing to trial, a glacial pace that would not be tolerated here. Much of this slowness is due to insufficient allocation of resources to the courts in Ontario and elsewhere in Canada; the system moves with less urgency than a crowded DMV office. It was that way when I practiced law there 20 plus years ago and it’s still that way now.

But those issues aside, the Canadian practice of produce first then fight only if the receiving party believes relevant information was not produced has the effect of reducing the money and time spent on discovery, while still preserving the principle that broad discovery is the best avenue to a just result.

Cliff Shnier
Insightful Electronic Discovery Consulting
Phoenix, Arizona
cliff@cliffshnier.com
480-205-0687

 


Northern Exposure — E-Discovery in Canada

September 16, 2010

On New Year’s Day, 2010, the province of Ontario became the latest North American jurisdiction to amend its rules of civil procedure to address the discovery of electronically stored information. Yet it mentions the phrase “electronic discovery” once and once only. The United States Federal Rules of Civil Procedure were amended in 2006 in at least twelve places to specifically refer to electronically stored information in discovery. Thirty states since that time have followed suit. One Canadian province, Nova Scotia, has also amended its rules. Now Canada’s largest province, home to nearly one-third of the country’s population and more than half of its lawyers, has amended its rules of civil procedure in a unique way a way that might best be described as either troublingly vague, or a stroke of genius. The relevance to US practitioners is this: in many categories of complex litigation, be it in the financial sector, or in intellectual property, or in energy, actions that may be in the US Federal Courts may very well have a Canadian parallel action, and most often that will be in the Superior Court of Ontario. If you think that “up there” e-discovery is not as far along as in the US, think again.

Ontario’s amended Rule 29.1.03(4) reads as follows: “In preparing the discovery plan, the parties shall consult and have regard to the document titled “The Sedona Canada Principles Addressing Electronic Discovery” developed by and available from The Sedona Conference.”

That’s it. “Electronic discovery” is mentioned only here, within the title of a document that lawyers “shall consult and have regard to.” For observers of the U.S. legal scene, this seems naïve. How do you enforce a rule like this? What Ontario has done either invites difficulty, because on its face this looks vague; or, it has placed on its legal profession – including its judiciary — a clever mandate to become well-informed and act like grown-ups. It may turn out to be the smartest way yet that any jurisdiction has amended its rules for electronically stored information.

Consider this. Aside from the odd fact that a tourist town in Arizona is mentioned in the rules of a Canadian province 2000 miles away, this is remarkable for other reasons. No other jurisdiction has actually mentioned the Sedona Principles or the Sedona Conference by name in its rules. Look at the U.S. federal rules amendments and commentary. You won’t find it, though it’s a known fact that The Sedona Conference was a key source of input to the U.S. rules committee. Notice that the document referred to in Rule 29.1.03(4) is not simply the list of enumerated principles, but the entire publication, 54 pages in length. That’s a lot of content, but not burdensome.

Now take a step back and look at the context around this one subrule, the broader “discovery plan” rule 29.1 This rule requires the parties to litigation to agree upon and file with the court a written discovery plan within 60 days after the close of pleadings. Subrule 29.1.03 (3) states: (3) The discovery plan shall be in writing, and shall include, (a) the intended scope of documentary discovery under rule 30.02, taking into account relevance, costs and the importance and complexity of the issues in the particular action; (b) dates for the service of each party’s affidavit of documents (Form 30A or 30B) under rule 30.03; (c) information respecting the timing, costs and manner of the production of documents [under Rule 30.01(1) “documents” includes electronic data] by the parties and any other persons…. (d) any other information intended to result in the expeditious and cost-effective completion of the discovery process in a manner that is proportionate to the importance and complexity of the action. The subrule immediately following is the one telling the parties they “shall consult and have regard to” Sedona Canada.

When read in context, the significance becomes clear. The first Principle states “Electronically stored information is discoverable.” A discovery plan that doesn’t deal with electronically stored information will violate Rule 29.1. In all likelihood, so will a discovery plan that doesn’t take into account the other Sedona Canada principles, such as:

 • Principle 3, which states that parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevant electronically stored information as soon as litigation is reasonably anticipated.

 • Principle 4, which states that parties and counsel should meet and confer soon and on an ongoing basis.

 • Principle 8, which states that the parties should agree early on the format in which electronically stored information will be produced.

• Principle 9, which states that the parties should agree on or seek judicial direction to protect privilege and confidentiality.

Moreover, as it is the entire 54 page document and not just the list of principles, cursory attention will not suffice. The list does not mention metadata. However, in the discussion under Principle 8, we find at page 30: “The parties should strive to agree on a methodology of production that (a) preserves metadata and allows it to be produced when relevant.” The document explains what metadata is; it also does a good job explaining in clear and concise terms a lot of the other terminology and issues pertaining to electronic discovery.

The amendments to the U.S. rules have been in effect for nearly three years. Yes, they neatly specify that at the Rule 26(f) meet and confer the parties discuss the preservation, forms of production, and procedures for dealing with inadvertent disclosure of electronically stored information. And yes, they provide a process for requesting a specific form of electronic production, and a procedure for objecting to that requested form, and a default minimum standard for a form of production, under Rule 34(b). And so on.

Yet for all that specificity, we’ve seen disputes and lawyers getting into trouble. Nothing in the federal rules tells lawyers to read the U.S. version of the Sedona Principles. In all likelihood, this means that most U.S. litigators have not read the Sedona Principles. It might have saved some of them from a lot of trouble. Like Canada’s version, it is literate, educational, and at 102 pages, not unduly burdensome. The operative words of the Ontario amendment are “shall consult and [shall] have regard to” the Sedona Canada Principles. Though it sounds polite, this is not a suggestion. It is mandatory language telling lawyers to acquaint themselves with material they need to know. For additional “teeth”, look at Rule 29.1.05: “On any motion under Rules 30 to 35 relating to discovery, the court may refuse to grant any relief or to award any costs if the parties have failed to agree to or update a discovery plan in accordance with this Rule.” This is in addition to the court’s power to impose cost penalties and other sanctions found elsewhere in the Ontario rules, and in its inherent authority. Keep in mind, “costs” in Ontario generally means something much more than in the United States. It means that the losing party will pay a sizeable chunk of the winning party’s legal fees. That’s a mighty big set of teeth right there.


Borderline Disorders

July 5, 2009

 

Other countries have not tailored their laws to suit the convenience of American trial lawyers.  How inconsiderate.

Don't expect to just dance right in to collect the data either.

Don't expect to just dance right in to collect the data either.

I know this is a hard concept for Americans to grasp, but the force of U.S. law does not extend outside the U.S. If you’re litigating a case where discoverable information sits in other countries, don’t think that you can swagger in there John Wayne-style, collect it, and bring it back to the U.S. for a look-see — not even if the data is located on servers belonging to a European subsidiary or parent of your corporate client.  It’s not theirs to give and it’s not yours to take, at least not without first jumping through a few legal and cultural hoops. 

Privacy laws outside the U.S. make what is otherwise routine and procedural here illegal over there.  Lawyers representing U.S. companies have been prosecuted in Europe for collecting electronic data for U.S. legal proceedings.   

You can either comply with the law here or you can comply with the law there, but you can’t easily do both.  It’s not that you can’t take electronic data outside of countries with privacy protection laws —  you can, but only if you do it the right way.  And sometimes it’s just easier to work with it there instead of trying to get it out. 

 On day two of LegalTech West Coast in Los Angeles June 25, one of the morning presentations was titled Globalization and International E-Discovery, moderated by George Rudoy, with Browning

Not wanting to scare you or anything, but you really won't like it if you're arrested over there.

Not wanting to scare you or anything, but you really won't like it if you're arrested over there.

Marean and Michael R. Polin as panelists.  I’m glad I chose this session, and I am sure the rest of the audience feels likewise.  If the materials and audio become available online, I recommend them.  Another recent presentation I recommend is a FIOS webcast presented April 21, 2009 titled The Sedona Conference® Update: Addressing the Challenges of Cross- Border e-Discovery, presented by FIOS and the The Sedona Conference.  This is available online at the FIOS website.

For a country that traditionally prizes the rights of the individual, the United States does a poor job of protecting personal privacy.  Other countries have comprehensive privacy protection laws.  Other than a patchwork of topic-specific protections, such as medical information under HIPAA (the Health Insurance Portability and Accountability Act of 1996, P.L. 104-191), we do not have privacy legislation. 

Privacy protection in the U.S. is mostly about protection against governmental infringement, such as the Fourth Amendment to the Constitution prohibiting unreasonable search and seizure.  We don’t seem to care much about nosy intrusions by non-governmental entities.  Privacy protection in Europe is about protection not only from state-sponsored abuses – Europe’s twentieth century experiences of these are truly horrific [Note 1] —  but also against abuses by corporate and other private interests.  For example, individual credit reporting is much more restricted in Europe, limited for the most part to a registry warning of persons who have defaulted on consumer debt. 

In the U.S. you have to actively opt-out of receiving telemarketing calls.  In Europe, they don’t have your information in the first place, so they can’t bother you.  While it’s been quite a few years since I’ve had dinner at a friend’s home in Europe, I have a hunch that their dinnertimes are interrupted by annoying telemarketing calls a lot less than ours are.  

Most other industrialized countries, civil code jurisdictions in particular, have a much more restricted scope of discovery in their civil litigation.  However that is not what prevents data from other countries from entering the US.  It’s a combination of Directive 95/46/EC of the European Parliament, part one here , part two here, and the privacy legislation of each of the member states that prevents such transfer.  For a table of links to all the EU member privacy protection statutes, go to http://ec.europa.eu/justice_home/fsj/privacy/law/implementation_en.htm.  Not all of them have English translations available.  

EU Directive 95/46 sets the minimum standard for privacy legislation of the member countries.  Some, like Germany’s, go quite a bit beyond the directive’s requirements.  However, provided another member country’s legislation meets the minimum requirements of the directive, and they all do, then data can be transferred from one member country to another.  

Outside of the European Union and the European Free Trade Area, only two non-European countries have fulfilled the EU’s requirements.  The United States is most definitely not one of them.  These two countries are Canada and Argentina.   For the EU’s certification that Canada is compliant, go to http://ec.europa.eu/justice_home/fsj/privacy/docs/adequacy/canada_st15644_06_en.pdf

In the case of Canada, this is somewhat ironic.  All of Canada’s provinces except Quebec are common blame-canadalaw jurisdictions with broad discovery like the U.S. (see Ontario’s Rule 30 here) , but that doesn’t mean data can be freely gathered there and brought into the U.S. for the purposes of civil litigation.  Canada, like the 27 member countries of the European Union, has comprehensive privacy legislation, the Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5. (known as “PIPEDA”.)  You’ll need to engage local counsel in Canada to assist you with this legislation and any other relevant provincial or federal laws in Canada before gathering any electronic data there and bringing it south of the border. 

Conversely, while its discovery and other rules of civil procedure are substantially the same as the U.S. and significantly more expansive than continental Europe, data from continental Europe that cannot be transferred into the U.S. can be transferred into Canada.  Again, a caveat – get the advice of local counsel in Europe or Canada – ideally both — to make doubly sure that it will be all right to move data from continental Europe to Canada for hosting on a server for your reviewers to log in to from California.  

What constitutes transfer of data outside the EU?  Is it copying it from its source and then loading it onto a server, and if that server is within an EU member state, all is well?  Or does transfer constitute ability to access online – so even if the data reside on a server on European soil, does a review room in New York with access to that database on that server in Europe violate that European country’s privacy laws and the EU’s directive?

The answer depends on the specific country’s legislation.  Some of them are so strict that the review room itself has to be on European soil.  Others are fine with access from anywhere, as long as the digital files themselves remain housed on media located within Europe, or within a country that is certified by the EU as compliant with its privacy directive.  Quick quiz, what did we just say those two countries

Don't cry for me or your data.

Don't cry for me or your data.

are?  Once again, Canada and Argentina.   

Another question:  is it simply the fact that the data is electronic, or the fact that the data collection may contain items within it that are personal in nature, that runs afoul of European privacy laws? 

Asking that question betrays my American frame of reference and way of thinking.  We’re now into a discussion not just of differences in law, but of differences in culture.

Here in the U.S. an employee has no expectation of privacy when he or she uses employer-provided equipment and infrastructure to shop online or to send an e-mail to a spouse reminding him or her to pick up the dog from the veterinarian or the kids from day-care, whereas in Europe an employer has no right to those personal communications and transactions notwithstanding they were done on company time and equipment.  Different societal priorities. 

But it goes further than that.  The splitting of a person into a “company self” and a “personal self”, while normal to our way of thinking, seems to be an unknown concept in Europe.  An e-mail sent or received by an employee entirely in his or her corporate capacity is still “personal” in the laws of European countries because it has that employee’s name on it.  A person is a person is a person, even when he’s working for The Man.  In other words, merely removing what we in the U.S would regard as the “really” personal contents of an individual’s corporate e-mail box (the messages to friends and family, the receipts for online purchases, etc.) does not render the rest of it all right to transfer from Europe to the U.S. 

So, when is it all right to transfer European data to the U.S? 

 First, maybe consent will suffice.  If consent to the transfer is given by the person identified as the “data subject”, then that takes you a long way toward being all right with bringing it in.  Note that you’re not home safe yet.  In some source countries, that consent might be sufficient; others with more restrictive legislation may still have a problem with what happens downstream with data in U.S. discovery, because it may have to leave the control of the company initially collecting it.  Another point to remember is that in some countries, a consent given by an employee at the request of an employer is presumed not to be voluntary, in other words, no consent at all. 

Second, you might consider getting official authorization.  All EU countries have a privacy commissioner (Canada seems to have dozens), and their respective privacy statutes all provide for a procedure to seek the approval of this official for the transfer of data out of the country to the U.S. Make a good case that the removal of the data falls within one of the enumerated reasons to permit it, and you’re good to go.  Of course, the wheels of European bureaucracy can grind even more slowly than the wheels of U.S. justice.

Third, there’s the “Safe Harbor” route.  These two words should not be confused with the safe harbor concept in Fed. R. Civ. P. 37(e).  We’re talking about totally different harbors here.  The United States Department of Commerce maintains a list of companies that are certified as compliant with the EU privacy directives.  Data can be transferred from Europe to the U.S. if it is going into the hands of one of these companies. 

Safe Harbor certification is self-certification.  It has to be.  The Department does not have and should not be expected to have the resources to inspect the data handling practices of hundreds or thousands of companies.  Companies have to re-certify themselves each year, and they are subject to a of Department of Commerce audit, which may be triggered by a complaint, and if they fail that audit, they’re off the list and potentially subject to other penalties for having inaccurately certified themselves. 

Because of the arguably subjective and transitory nature of Safe Harbor certification (companies on the

This place might be safe.

This place might be safe.

list one year can be gone the next), one Canadian e-discovery vendor distributed fliers at New York LegalTech a couple of years ago with a photograph of the Toronto waterfront with the caption “Your safest safe harbor.” 

 Aside from comprehensive privacy acts passed since 1995 by various member states to comply with EU directive 95/46, there are also “blocking statutes”.   Some of these have been around for a longer time.  These are laws that may be quite specific in prohibiting the removal of data from a country. 

As Browning Marean told the audience at LegalTech in L.A., even a nice you don’t look foreign country like Canada can get unpleasant this way.  Two decades ago, well before Canada’s PIPEDA legislation, Browning had a trial in U.S. District Court in New Mexico.  A Canadian blocking statute prohibited the removal of certain industry-specific information from Canada.  This had prevented his client from being able to fulfill its discovery obligations. 

Too bad.  The judge entered default judgment against Browning’s client for 2.4 billion dollars.  Back then, that was a lot of money. 

Sometimes there's a little sibling rivalry

Sometimes there's a little sibling rivalry

That judge’s imperious ruling seems to imply that Browning and his client should have ignored Canada’s law; this fits completely with the stereotypical American who can’t quite grasp the idea that the reach of U.S. law ends at the border.  How dare some other country presume to interfere with our discovery processes even if it is on their soil?  Think of Ann Coulter’s diatribe in 2007 on Fox News (where else?) that Canada “better hope the United States doesn’t roll over one night and crush them”.   (You can watch this, if you really must, at http://www.youtube.com/watch?v=LmcZG87Fmxc.) 

As I mentioned earlier, if the materials from the West Coast LegalTech presentation by George Rudoy, Browning Marean, and Michael Polin do become available online, I recommend them.  Most of this post has been about Europe and Canada, and this was mainly Browning’s to speak about, but the session gave equal time to the rest of the world.  George had some interesting information about Russia and other former Soviet bloc countries.  Did you know that Russians will never sign anything?  You could have a hundred Russian employees of a multinational company, all perfectly agreeable to their data being removed from the country to the U.S., but ask them to sign their name to paper consenting to this?  Forget it.  They’ll never do it.  Memories of the KGB and the gulags die hard. Michael Polin has an international law practice that specializes in China.  If you think the stuff about Europe was complicated, try navigating your way around the laws in Beijing. 

The key take-away from all speakers regarding all countries – you will need to work with local counsel.