Good Essay About Foreign E-Discovery
E-discovery, usually refers to simply as discovery, denotes to the exchange of electronically stored information in litigation. The United States laws regarding discovery are pursuant to federal rule 26(1). The rules are government by many thorough procedures that determine whether or not they can be used by the opposing counsel. They are located in the federal rules of civil procedure as effected on the 1st of December and later amended on the same month of the year 2010. Most Jurisdictions around the world have come up with their rules regarding discovery so that they can effectively trade and relate to the USA.
Countries such as Mexico, Canada, Germany, and the United Kingdom have rules that have some differences as well as similarities to those of the United Sates as will be discussed below. It is worth noting that the USA e-discovery laws are much more advanced in terms of their requirements and conditions when compared with most countries. In fact, some nations have only deliberated on the terms of their rules regarding the same because of the apprehension with which the USA legal system is treated abroad. Therefore, most of their rules may not be as advanced or open as those of the US.
The e-discovery laws in the USA stipulate that any party, who has non-privileged information regarding the subject matter in a case should produce it. The court could also compel a plaintiff or defendant to release ESI of it will, in any manner that is deemed relevant, affect the claim of either party. As anticipated, there would be scenarios where parties could delete any information that they consider demeaning to their case. Hence, the rules require them to ensure that such data is safe immediately they are notified of a trail. The strictness of the law concerning this issue is explicit on fines and penalties when parties are found in violation of the e-discovery regulations.
At the present, this situation would be negatively received in some foreign countries such as Germany. The reason is that the country has very strict privacy laws that are different from those of the US. The statement does not mean that the USA does not take its private laws seriously. The fact is that privacy laws are not part of the fundamental rights in the Country’s Constitution leave room for the strictness of e-discovery rules. In Germany, for instance, the Data protection and privacy acts prohibit the parties from revealing any sought of employee information for any reasons. The employee data can only be disclosed under certain conditions. Among them is the fact that data has to be so necessary as to warrant its disclosure a protection of public interest.
In addition, there has to be no legitimate interest for both parties in the revealing of the data. As it can be noted, the approach is more rigid than what is in the USA. The terms are not very distinguishable from those of the USA but are certainly stricter and more attuned to the interest of the public. In such a case, international law prohibits the USA from compelling a party to reveal information that violates the data protection act under German Jurisdiction.
The USA legal system has been regularly accused of putting its truth-seeking efforts above all other things. The truth is more important than things such as the costs of litigation, the rights of the parties and so forth. Sometimes, the issues of accessibility of information, its reasonability and the costs towards the retrieval process are challenges that are attributed to e-discovery laws. International law forums often criticize the US of the ambiguities regarding such issues. For example, rules 1 and 26 provide that parties may not release ESI if its accessibility and costs present a burden. However, the issue of what is accessible has not been fully explained. In essence, electronic data is always in the most accessible form. In addition, the courts put the costing burdens on both parties, which makes it difficult. The test of what is reasonable is hard to prove in most scenarios because the degree and relevance of information varies. Most foreign laws on the e-discovery rules have not grown because of such challenges.
Canada is a good example of a country that is still growing. The Canadian rules on e-discovery and accessibility of information are somewhat different to those of the USA. There is the similarity in the fact that courts may order an individual to take steps that would ensure they find the data in question. However, Canadian Courts consider the aspects of software and hardware. If they are licensed, then the requesting party would be asked to produce them himself. The Courts in the USA place the burden on all litigants. However, Canadian foreign law dictates that the requesting party should handle the fishing when the other person cannot access the data. Another difference comes in on the issue of costs. Canadian law operates under a loser system that advocates that payments of the suit should be made by the loser. Therefore, instead of both parties accommodating costs like it is in the US, the successful person will get a refund of all their money.
The system operates under a fairness rule that the innocent person should not have to contribute in terms of costs. So, even if the requesting party makes the other one incur costs during the trial, they can have their costs of production back when they win after the trial. The fairness is strictly based on the decision of the courts regarding the matter. In USA, everybody pays in the quest for the truth and no refunds are awarded. For this reason and many more, international law has criticized the discovery laws in the USA. Also, the issue of sanction is met with a less rigid approach than what is in the US concerning the violations of the rules. The statement does not imply that Canada does not give sanctions. The punishments subjected to individuals are the same ones as those of the United Sates. The distinction can be noted in the frequency and enthusiasm with which it is afforded. Probably, the lack of strictness in sanctions is because the country does not have a lot of case law on the matter. There is no precedence to guide the court when it at crossroads over the issue of penalties as it is the case with the USA.
The United Kingdom is more concerned with proportionality as opposed to the USA truth-seeking against all odds. The biggest difference of the e-discovery rules between these two nations has to do with their stand on what is discoverable. Parties can only disclose information that is substantially and directly related to the case. The effect that the documents under disclosure would be presumed to have has to be exceptionally significant. Significant, in this case, denotes the changing of the courts view on the case. The Courts in the United Kingdom are usually under a great obligation to provide justice as opposed to merely finding the truth. Therefore, a party would only be forced to disclose information that is considered to be just. Other than that, ESI would be regarded as useless in a court. The law applies to people from other jurisdictions as well. Disclosure orders in the United Kingdom Courts are usually supposed opt be proportionate to other factors such as costs, the importance of the documents and the amount that is being disputed.
Ideally, a court would not subject a party to produce documents when the costs of the process would be higher than the amount being requested. Such rule of proportionality is not as seriously regarded in the US as it is in the UK. In the latter, the limitations that threaten the rules of parties of e-discovery laws are very many. The situation could explain why the country does not have much case law on the subject. It does not apply the rules as often as the US does because of the proportionality test. The US mainly relies on accessibility and reasonability, which are related to, but different from the test of proportionality. In addition, the courts limit the documents that can be produced to a bigger extent in the United Kingdom.
For instance, the requesting party can only access online data and those documents that are still electronically active. In the USA, an individual can be asked to retrieve information form deleted options of it is deemed as important to the case. Also, the country is much more like Canada when it comes to who pay for the production costs. The loser in the matter in Court, just like is the case with the Canadian system, would be compelled to pay for all the costs. The common ground that the United Kingdom has with the United States is that in both cases, the parties are required to preserve ESI. The parties to a case are required to ensure that all the information that would be needed is guarded and does not get lost. However, the rules, in this case, are not clear when it comes to the sanctions that may be imposed in the same manner like the US is.
The Mexican e-discovery laws are quite different from those of the United States. In the case of Germany, the United Kingdom and Canada, there are certain aspects that are similar to the rules in the USA. However, the Mexican laws on the subject are very distinct. One of the differences is on the specificity of the data to be produced. The party that a request for the documents has to specifically state what they think will be necessary for the case. Otherwise, the other party would not be asked to disclose information. The rationale behind this is to stop time-wasting on documents that may not be of any help to the Courts. The courts would revoke any plea by the requesting party if they did not specifically state what the other one should produce upon the notice of litigation.
Litigants are barred from making any assumptions and unfounded guesses concerning what documents are needed. They are expected to state what they want with a profound understanding. Mexico, in addition, has taken a safety measure that would ensure electronic data is not spoilt. Business people are required safely to keep all the data that dates to ten years back. Surprisingly, that is the time frame that applies to its limitation of time’s act. By doing so, Mexico ensures that the needed information would be automatically available when the court needs it. The system does not leave room for people who would rather be sanctioned that reveal some information about their business endeavors. Also, there is the distinction of a concept that the USA does not have; the burden of proof. The courts require that individuals who request for electronically stored information should present all evidence to its existence. Parties are not, therefore, given room for speculation on whether their opponents have any data that may help their case. The aspect that all these countries have in common has to do with their loser policies. The loser in this instance is also required to cover the expenses of the suit. Moreover, the sanctions in Mexico are the same as those of the USA when it comes to spoiling data. The seriousness is extreme, to the extent that it warrants a criminal offense. The reason for the justification of string sanctions is that it is inscribed in the laws that people are not supposed to delete such information.
When it comes to international crimes, the use of e-discovery has been of much speculation. The reason exists in the fact that legislations and jurisdictions are different. The USA, as seen in the above discussion, does not provide the same kind of privacy protection that other nations do. Consequentially, the international community would not feel safe in giving information to the country. Most of them try to have the same kind of e-discovery laws with a hint of protection so that justice can be served. However, the USA rules have remained rigid as other foreign countries continue to try and reach an agreeable level to where it is as a country. Other countries still feel threatened about their sovereignty where the USA e-discovery laws are concerned.
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