Amicus Curiae Brief — United States v. Microsoft Corp., 138 S. Ct. 1186 (2018) (No. 17-2)

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IN THE

Supreme Court of the United States

UNITED STATES,

Petitioner,

MICROSOFT CORPORATION,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF FOR AMICI CURIAE

E-DISCOVERY INSTITUTE ET AL..,

IN SUPPORT OF NEITHER PARTY

DAVID KESSLER*

Counsel of Record

NORTON ROSE FULBRIGHT US LLP

1301 Avenue of the Americas

New York, NY 10019-6022

(212) 318-3382

david. kessler@

nortonrosefulbright.com

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIEG...................cccccccecceeseesees iii

INTEREST OF AMICI CURIAE ................ccccccccesseees 1

SUMMARY OF THE ARGUMENT ......................00000 2

IL.

Il.

PRODUCTION OF DOCUMENTS

LOCATED ON FOREIGN SOIL

INTRUDES ON FOREIGN

SOVEREIGNTY AND REQUIRES A

Se EE stncncgusdnicdensecwsscccccoccesccones 6

A. Domestic Production Is Part Of A

Process Of Discovery That May

Cross Borders And Raise

B. The Mere Fact That Evidence Is

Digital And Accessible From The

U.S. Does Not Obviate The Need For

C. The Stored Communications Act

Demonstrates Why Comity Analysis

And Providing Due Respect To

Foreign Laws Is Crucial To The Rule

cnr nina ctnsennnes 13

COURTS NEED ADDITIONAL

GUIDANCE TO PROPERLY WEIGH

U.S. AND FOREIGN INTERESTG............... 17

(i)

‘i

TABLE OF CONTENTS — Continued

Page

I1.THE COURT SHOULD PROVIDE

GUIDANCE ON HOW TO

DEMONSTRATE DUE RESPECT FOR

FOREIGN INTERESTS AND, IN

PARTICULAR, HOW TO WEIGH U.S.

AND FOREIGN SOVEREIGNS’

A. The Court Should Articulate A

Procedural Framework For Courts

To Consider The Aérospatiale

RSE Ere aE ce 22

B. The Court Should Provide Additional

Guidance On Weighing Foreign

C. The Court Should Provide Better

Guidance On Objective

Consideration Of U.S. Interests .............. 29

D. Where A Conflict Remains, Courts

Should Minimize It As Much As Is

Reasonably Possible ............................00+ 30

ID hac eicriieneectinanentatencnitdihninancsineenssseaiensiniiiesiaiinin 33

ADDENDUM

TABLE OF AUTHORITIES

Page(s)

CASES:

AstraZeneca LP vy. Breath Litd., No. CIV.

08-1512 (RMB/AM), 2011 WL 1421800

ns Sr I cepemsseasicnsies

BrightEdge Technologies, Inc. v.

Searchmetrics, GmbH., No.

14CVO01009WHOMEY, 2014 WL

3965062 (N.D. Cal. Aug. 13, 2014).......0000000.....

Gucci Am., Inc. vy. Curveal Fashion, No.

09 CIV. 8458 RJS/THK, 2010 WL

808639 (S.D.N.Y. Mar. 8, 2010) ............000000.....

Hilton v. Guyot, 159 U.S. 113 (1895)..................

In re Activision Blizzard, Inc., 86 A.3d

Sf EE ere 12-

In re Auto. Refinishing Paint Antitrust

Litig., 358 F.3d 288 (3d Cir. 2004) ...................

In re Bard IVC Filters Prod. Liab. Litig.,

317 F.R.D. 562 (D. Ariz. 2016) .........................

In re Payment Card Interchange Fee &

Merch. Disc. Antitrust Litig., No. 05-

MD-1720 (JG)(JO), 2010 WL 3420517

t ) | 8 RE eee 18,

In re Perrier Bottled Water Litig., 138

F.R.D. 348 (D. Conn. 1991)...................00.0-00000e-

In re Search of Information Associated

with [redacted/@gmail.com that is

Stored at Premises Controlled by

Google, Inc., Case No. 16-mj-00757

(BAH), 2017 WL 3445634 (D.D.C. July

TABLE OF AUTHORITIES — Continued

Page(s)

In re Toft, 453 B.R. 186 (S.D.N.Y. 2011)........ 14-15

In re: Xarelto (Rivaroxaban) Prod. Liab.

Litig., No. MDL 2592, 2016 WL

3923873 (E.D. La. July 21, 2016)..................... 32

Matter of Warrant to Search a Certain E-

Mail Account Controlled & Maintained

by Microsoft Corp., 829 F.3d 197 (2d

ee icciincacinsinteniinnadesninsapianbienensntmninescnsese 3, 11

Minpeco, S.A. v. Conticommodity Servs.,

Inc., 116 F.R.D. 517 (S.D.N.Y. 1987) ............... 27

Moore v. Publicis Groupe, 287 F.R.D.

182, 186 (S.D.N.Y. 2012), adopted sub

nom. Moore v. Publicis Groupe SA, No.

11 CIV. 1279 ALC AJP, 2012 WL

1446534 (S.D.N.Y. Apr. 26, 2012).................... 32

Motorola Credit Corp. v. Uzan, 73 F.

Supp. 3d 397 (S.D.N.Y. 2014)..................... 17, 24

Munoz v. China Expert Tech., Inc., No.

07 CIV. 10531(AKH), 2011 WL

5346323 (S.D.N.Y. Nov. 7, 2011)................ 19, 25

Reinsurance Co. of Am. Inc. v.

Administratia Asigurarilor de Stat,

902 F.2d 1275 (7th Cir. 1990)..................... 18, 25

S.E.C. v. Stanford Int'l Bank, Ltd.,

776 F. Supp. 2d 323 (2011).................... 13, 20-21

Société Nationale Industrielle

Aérospatiale vy. U.S. District Court for

the Southern District of Iowa,

ee ee crrtaitedctneencretnesscnisccnmnned passim

TABLE OF AUTHORITIES — Continued

Page(s)

St. Jude Med. S.C., Inc. v. Janssen-

Counotte, 104 F. Supp. 3d 1150 (D. Or.

Se eiraicintcecitiedinsieshnhaciarisinsieinciieidnibidtitacin asintsdicissaansuinansie 32

Suzlon Energy Ltd. v. Microsoft Corp..,

671 F.3d 726 (9th Cir. 2011)...00.00000000000o. 13-14

Trueposition, Inc. v. LM Ericsson Tell.

Co., No. 11-4574, 2012 WL 707012

SE ES ee ee 27

RULES:

Fed. R. Civ. P. 34(A)(1) (as amended in

RRR Se aa ee aver ae 16

FOREIGN CASES:

Prop. All. Grp. Ltd. v. The Royal Bank of

Scotland PLC [2015] EWHC 321 (Ch) ............ 19

FOREIGN LAW:

Code du travail [Labor Code] art. 432-2-1

(| ROSE NTE RS Saris ea gee Sees 5 Oo a 26

Charter of Fundamental Rights of the

European Union art. 7, 2012 O.J. C

STII nhisistainislishisniireiiptennineibenestinlagsteneiciatuensinienesastinmsonas 26

Data Protection Act of 1988 (amended

2003) (amended to reflect EU Directive

i 25

Décret 81-550 du 12 mai 1981 portant

application de l'article 2 de la loi n° 68-

678 du 26 juillet 1968 relative a la

communication de documents et

renseignements d’ordre économique,

commercial ou technique a des

TABLE OF AUTHORITIES — Continued

Page(s)

personnes physiques ou morales

étrangéres [Decree No. 81-550 dated

May 12, 1981 implementing Art. 2 of

Law No. 68-678 of 26 July 1968

Relating to the Communication 0°

Documents and Information of an

Economic, Commercial or Technical

Nature to Foreign Natural or Legal

| a ee 8

ePrivacy Regulations, S.1. 336 of 2011

(codifying EU Directive 2009/136/EC

(as amended by Directive 2006/24/EC

and 2009/1 3G/EC)) (Ir.) ............0.ccccccceeeeceeeeeeeees 25

Loi 80-538 du 16 juillet 1980 relative a la

communication de documents et

renseignements d’ordre économique,

commercial ou technique 4 des

personnes physiques ou morales

étrangéres [Law 80-538 of July 16,

1980 Relating to the Communication of

Economic, Commercial or Technical

Documents or Information to Foreign

Persons or Legal Persons], Journal

Officiel De La République Francaise

{J.O.], July 17, 1980, art. 1A (Fr.). .................... 8

Regulation (EU) 2016/679, General Data

Privacy Regulation art. 46, 2016 O.J.

a I a II Lik oir ches sasiniahiniid clamattaaiioaniadienbil 12, 26

OTHER AUTHORITIES:

American Bar Association, Resolution

103, adopted February 6, 2012........................... 4

vii

TABLE OF AUTHORITIES — Continued

Page(s)

Article 29 Data Protection Working

Party (“WP”), WP 158, 11 February

ib decinencsenmeseorninesbnsarmpditininnarenesestanss 32-33

Brian Friederich, Reinforcing the Hague

Convention on Taking Evidence Abroad

After Blocking Statutes, Data

Protection Directives, and Aérospatiale,

12 San Diego Int'l L. J. 263 (2010)................... 28

Diego Zambrano, Comity of Errors: The

Rise, Fall, and Return of International

Comity in Transnational Discovery,

34 Berkeley J. Int'l L. 157 (2016) ............... 18-19

Ellen Relkin and Elizabeth O. Breslin,

Hiding Across the Atlantic,

48 JUN Trial 14 (2012) .000..........cccccccccccccceeeeeeee 27

The Electronic Discovery Reference

Model (v3.0) (2014) ...........ccccccccsecsssesseseseeseeeeeeeees 6

Geoffrey Sant, Court-Ordered Law

Breaking: U.S. Courts Increasingly

Order the Violation of Foreign Law,

81 Brook. L. Rev. 181 (2015) ..........00...0000.... 18-19

Google Transparency Report, available

https://transparencyreport.google.com/

user-data/overview (last visited Dec.

Deas Ee Piaahdiciitaniinniatcatnadhigdinaiabndiiddiaptentesseonisnen 15

TABLE OF AUTHORITIES — Continued

Page(s)

Viviane Reding, Vice-President, Eur.

Comm'n, Data Protection Reform:

Restoring Trust And Building The

Digital Single Market (Sept. 17, 2013) ........... 29

Restatement (Third) of the Foreign

Relations Law of the United States............ 29-30

The Sedona Conference, The Sedona

Conference Commentary on Achieving

Quality In The E-Discovery Process, 15

Sedona Conf. J. 264 (2014) ............ccccccecceceeeeeeeees 6

The Sedona Conference, Sedona

International Principles on Discovery,

Disclosure & Data Protection in Civil

Litigation (Transitional Edition)

(January 2017) .............0000+ . 23, 31-32

The Sedona Conference's Working Group

6 (WG6), available at

https://thesedonaconference.org/wgs

RE SR I Bi MIE ED sacecerenececscscccosscnsvenccee 6

Trevor Jefferies and Alvin F. Lindsay,

New French Case Removes Automatic

Privacy Shield from Employee E-mails,

Making Them More Amenable to US.

Discovery, Hogan Lovells Chronicle of

Data Protection (Feb. 18, 2010) .................... 28

TREATY:

Hague Convention on the Taking of Evidence

Abroad in Civil or Commercial Matters, opened

for signature Mar. 18, 1970, 23 U.S.T. 2555,

Jf ie Re eee 7

TABLE OF AUTHORITIES — Continued

Page(s)

Treaty Between the Government of the

United States of America And the

Government of Ireland On Mutual

Legal Assistance in Criminal Matters,

U.S.-Ir., Jan. 18, 2001, T.1.A.S. 13137. .............. 9

IN THE

Supreme Court of the United States

No. 17-2

UNITED STATES,

Petitioner,

MICROSOFT CORPORATION,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF FOR AMICI CURIAE

E-DISCOVERY INSTITUTE ET AL..,

IN SUPPORT OF NEITHER PARTY

INTEREST OF AMICI CURIAE

Amici Curiae are a collection of e-discovery

practitioners and professors that focus their practice

on cross-border civil discovery and corporations that

conduct cross-border discovery regularly.! Amici seek

to assist this Court in addressing the conflict of laws

that arises when, as here, a party is called on to

! No counsel for a party authored this brief in whole or in

part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief No

person other than the Amici curiae or their counsel made a

monetary contribution to its preparation or submission. All

parties have consented to the filing of this brief.

produce in the U.S. information that resides outside

the U.S. and is subject to foreign data protection laws.

In this circumstance, the producing party faces a

conflict between meeting its U.S. legal obligations and

complying with foreign laws that may regulate how a

party manages, maintains, processes, transfers and

discloses data.

Amici respectfully ask the Court to recognize this

conflict in the present matter and provide guidance on

how U.S. courts should address it. In particular,

Amici write to highlight the importance of this Court's

opinion in Aérospatiale, comity analysis, and due

respect for foreign laws when U.S. discovery reaches

into a foreign sovereign. As such, the brief of Amici

will not address every point argued by the parties and

Amici do not express an opinion on whether a warrant

under the Stored Communication Act can compel a

service provider to produce email out of a foreign

jurisdiction. Instead, Amici focus on how to address

the conflict between production of extra-U.S. data and

foreign laws that limit or prohibit it.

Owing to the large number of Amici, the names and

brief descriptions of these parties are attached as an

addendum. To the extent individuals are listed as

Amici Curiae, they are expressing their personal

views and do not represent their companies, schools,

firms, organizations, or clients.

SUMMARY OF THE ARGUMENT

This case involves a dispute about the appropriate

application of the Stored Communications Act (“SCA”).

While the parties agree that the SCA lacks

extraterritorial reach, they dispute whether the

warrant at issue in this case is extraterritorial.

Microsoft argues that the warrant is extraterritorial

because it seeks information stored in Ireland; the

government argues that the warrant is domestic

because Microsoft could comply by “undertaking acts

entirely within the U.S.” Br. for the U.S. at 25. Put

simply, Microsoft focuses on the location of the data,

while the government focuses on the location of the

human action taken to disclose it.

The Second Circuit recognized that the

“international reach of American law” is a paramount

consideration in the present matter. 829 F.3d 197,

225. It further claimed that its decision “also serve/d]

the interests of comity that ... ordinarily govern the

conduct of cross-boundary criminal investigations.”

829 F.3d 197, 221 (emphasis supplied).

Despite this language, neither the Second Circuit

nor the parties addressed the comity framework set

forth in the landmark Supreme Court decision on

cross-border discovery and comity: Société Nationale

Industrielle Aérospatiale v. U.S. District Court for the

Southern District of Iowa, 482 U.S. 522 (1987). In

Aérospatiale, this Court required trial courts to

conduct a particularized comity analysis whenever

civil discovery conflicts with foreign law to determine

if the requesting party should be compelled to comply

with an international treaty or foreign discovery

process. 482 U.S. 543-44. Just as responding parties

in the civil discovery progeny of Aérospatiale face the

unenviable choice of violating United States discovery

obligations or violating conflicting foreign laws, so too

has this case — at least arguably — forced Microsoft

to choose among similar options: (1) comply with the

Government's interpretation of the SCA and violate

Irish law; (2) comply with Irish law and be held in

contempt in the United States; or (3) seek to quash the

SCA warrant to the extent it requires Microsoft to

violate Lrish law and thus force the United States to

use a Mutual Legal Assistance Treaty (““MLAT”).

However the Court decides this case, it should not

lightly allow the U.S. government to intrude on Irish

sovereignty or require Microsoft to break Irish law.

See American Bar Association, Resolution 103,

(adopted February 6, 2012) (“[I]n pursuit of its

mission to uphold the rule of law, [the ABA] urges

U.S. courts to respect the obligations of litigants to

follow all laws applicable to their positions in the

litigation and, where possible in the context of the

proceedings before them, permit compliance with non-

U.S. data protection and privacy laws.”). If this Court

finds that this warrant involves only domestic

production, that production will rely on Microsoft's

identification, collection, and retrieval — that is,

Microsoft's discovery — of information stored abroad.

Amici therefore urge the Court to find that if the

warrant is not impermissibly extraterritorial, it

should be subject to a comity analysis that balances

U.S. and Irish interests in this matter. To hold

otherwise could mistakenly be read as a finding that

discovery of information that is stored abroad but

accessible within the United States does not require a

comity analysis under Aérospatiale. Amici believe, on

the contrary, that the analysis and factors set forth in

Aérospatiale for conducting this balancing test are

instructive and, with further clarification, provide a

way forward when U.S. production processes cross

borders.

Focusing on the conflict between a court order to

produce data residing outside the U.S. and foreign

laws that limit or prohibit it, Amici respectfully

propose the following:

(1) This Court should acknowledge that the actions

required to produce in the U.S. documents stored in

a foreign country raise international sovereignty

concerns, even where such documents are accessible

from the U.S., because such actions could conflict

with foreign law;

(2) Looking to Aérospatiale, the Court should require

that where there is a conflict, courts demonstrate

due respect for foreign sovereign interests by

performing a comity analysis to determine if the

requesting party should comply with an appropriate

treaty;

(3) Because courts below have had difficulty

applying certain Aérospatiale comity analysis

factors, this Court should guide courts on how to

properly balance U.S. and foreign interests; and

(4) Where a court determines that the requesting

party need not use a treaty or foreign discovery

process and the conflict remains, the Court should

require courts and parties to adopt appropriate

measures to reduce or mitigate foreign law

violations.

This issue is not going away. The Court's approach

here will reverberate beyond the specifics of this case.

Amici urge the Court to consider the broader impact

this case will have on discovery, including in the

context of civil matters.

ARGUMENT

I. PRODUCTION OF DOCUMENTS

LOCATED ON FOREIGN SOIL INTRUDES

ON FOREIGN SOVEREIGNTY AND

REQUIRES A COMITY ANALYSIS.

A. Domestic Production Is Part Of A Process

Of Discovery That May Cross Borders

And Raise Sovereignty Concerns.

Document production is not a single, isolated act.

Instead, production is the last step in a process that

includes identification, preservation, collection,

processing, search, and review. See The Electronic

Discovery Reference Model (v3.0) (2014)?; The Sedona

Conference? Commentary on Achieving Quality In The

E-Discovery Process, 15 Sedona Conf. J. 264, 286-98

(2014). Put simply, producing a document under legal

2 Available at inttps://www.edrm.net/frameworks-and-

standards/edrm-model/ (last visited Dec. 12, 2017).

3 “The Sedona Principles and Sedona commentaries thereto

are the leading authorities on electronic document retrieval and

production.” Ford Motor Co. v. Edgewood Properties, Inc., 257

F.R.D. 418, 424 (D.N.J. 2009). “The Sedona Conference is a

nonprofit legal policy research and educational organization

which sponsors Working Groups on cutting-edge issues of law.

The Working Group on Electronic Document Production is

comprised of judges, attorneys, and technologists experienced in

electronic discovery and document management —,

Autotech T chs. Ltd. P’ship v. Automationdirect.com, Inc.,

F.R.D. 556, 560 n.3 (N_D. IIL 2008). ee dtcheents

Working Group 6 (WG6) “address{es] issues that arise in the

context of e-information management and e-disclosure for

organizations subject to litigation and regulatory oversight in

multiple jurisdictions with potentially conflicting international

laws.” Id., available at https://thesedonaconference.org/wgs (last

visited Dec. 12, 2017). Many of the Amici are active in The

Sedona Conference, particularly WG6.

compulsion — whether from a document request in a

civil matter, a SCA warrant, or a third party subpoena

— does not occur in a vacuum: whether a party needs

only to find the executed contract in a customer's

folder or must search terabytes of emails to find the

handful that are responsive to a regulator’s request,

production is always preceded by other actions.

When documents‘ lie outside the U.S., at least

some of those actions occur on foreign soil, and may

thus be subject to foreign laws. Here, for example,

there is no dispute that the relevant emails reside

exclusively in Ireland. Ireland has explicitly asserted

its interest “in potential infringements by other states

of its sovereign rights with respect to its jurisdiction

over its territory.” Ireland CA2 Amicus Br. 1. Thus,

lreland’s interests in protecting its sovereignty may

well be violated when documents stored on its soil are

retrieved for disclosure in America.

Where sovereign rights and foreign law conflict

with U.S. production obligations, courts should

conduct a comity analysis. In Aérospatiale the

petitioners were two corporations owned by the

Republic of France that sought a protective order to

compel plaintiffs to conduct discovery through the

Hague Convention on the Taking of Evidence Abroad

in Civil or Commercial Matters, opened for signature

Mar. 18, 1970, 23 U.S.T. 2555, T.I.A.S. No. 7444 [the

4 Documents and Electronically Stored Information (“ESI”)

exist somewhere in a physical location. The “cloud” is not some

virtual world beyond geography. See Computer and Data Science

Experts CA2 Amicus Br. at 11-16 (explaining that cloud

documents are stored on physical servers that can be located

abroad); Amazon.com Inc. and Accenture PLC CA2 Amicus Br.

at 13 (same). Data may exist in one or multiple locations, but it

must exist somewhere.

“Hague Convention”]. Petitioners argued that French

Law — namely, the French Blocking Statute5 —

prohibited them from complying with U.S. discovery

except through the Hague Convention. Aérospatiale,

482 U.S. at 525-26. The Magistrate Judge denied the

protective order and allowed production through U.S.

discovery. Id. at 526-27.

On appeal, this Court struck a middle way. The

Court rejected categorical rules: the Hague

Convention was not mandatory for cross-border

discovery, ® but a federal court also could not dismiss

5 This statute prohibits all parties within French territory,

and all French citizens or legal entities, from engaging in foreign

discovery, except through formal channels such as those

authorized by the Hague Convention. Loi 80-538 du 16 juillet

1980 relative 4 la communication de documents et

renseignements d ordre économique, commercial! ou technique a

des personnes physiques ou morales étrangéres [Law 80-538 of

July 16, 1980 Relating to the Communication of Economic,

Persons or Legal Persons], Journal Officiel De La République

Francaise [J.0.], July 17, 1980, art. 1A (Fr.). The Statute routes

all discovery requests through French authorities. See id. at art.

2; Décret 81-550 du 12 mai 1981 portant application de l'article

2 de ia loi n° 68-678 du 26 juillet 1968 relative a la

communication de documents et renseignements d'ordre

économique, commercial ou technique a des personnes physiques

ou morales étrangéres [Decree No. 81-550 dated May 12, 1981

implementing Art. 2 of Law No. 68-678 of 26 July 1968 Relating

to the Communication of Documents and Information of an

Economic, Commercial or Technical Nature to Foreign Natural

or Legal Persons] (Fr.). Failure to comply can subject parties to

criminal sanctions. See id. at art. 3.

6 The Aérospatiale Court found that while the Hague

Convention was Federal law, it did not impose a mandatory

process for conducting civil discovery between signatory

countries. Aérospatiale, 482 U.S. at 536. Likewise, to the extent

that the Court finds that an SCA warrant can compel a party to

produce email! from outside the U.S., it should also determime if

it out of hand. /d. at 547. Instead, this Court held

that each trial court must conduct a particularized

comity analysis to determine if discovery could be

ordered under the Federal Rules of Civil Procedure or

should instead be routed through a treaty such as the

Hague Convention. /d. at 543-44. In particular, the

Court listed five factors to consider when performing

this analysis:

(1) the importance to the ... litigation of the

documents or other information requested;

(2) the degree of specificity of the request;

(3) whether the information originated in the

United States;

(4) the availability of alternative means of

securing the information; and

(5) the extent to which noncompliance with the

request would undermine important interests of

the United States, or compliance with the

request would undermine important interests of

the state where the information is located.

Id. at 544 n.28 (quoting Restatement of Foreign

Relations Law of the United States (Revised) §

437(1)(c) (Tent. Draft No. 7, 1986) (approved May 14,

1986) (Restatement)).

chess axe mandatory pueesmsen, euch a 0 Mutesl Lomi

Assistance Treaty between Ireland and the U.S, that apply. See

Treaty Between the Government of the United States of America

and the Government of Ireland on Mutual Legal Assistance in

Criminal Matters, U.S.-Ir., Jan. 18, 2001, T.1.AS. 13137. This

issue was not addressed by the courts below and Amici do not

address it here. It should also be noted that, unlike the instant

matter, it was not disputed in Aérospatiale that a document

request could compel a party to produce documents that were

stored in another country.

Aérospatiale’s holding recognizes that the extension

of U.S. law beyond U.S. borders inherently “touches”

the legal interests of other countries and invokes

comity. See Aérospatiale, 482 U.S. at 543 n.27

(“Comity refers to the spirit of cooperation in which a

domestic tribunal approaches the resolution of cases

touching the laws and interests of other sovereign

states.”). This Court has long recognized the demands

of comity in suits involving foreign states, either as

parties or as sovereigns with a coordinate interest in

the litigation. See Hilton v. Guyot, 159 U.S. 113

(1895). Simply limiting analysis to U.S. legal issues

and interests, such as whether U.S. constitutional

protections are satisfied, does not eliminate either the

interests of the relevant foreign state or a U.S. court's

duty to consider them. Rather, an attempt to apply

U.S. law to conduct occurring abroad will often reveal

a true conflict in interests, necessitating a comity

analysis. See Aérospatiale, 482 U.S. at 555 (“[T]he

threshold question in a comity analysis is whether

there is in fact a true conflict between domestic and

foreign law.”).

B. The Mere Fact That Evidence Is Digital

And Accessible From The U.S. Does Not

Obviate The Need For A Comity Analysis.

Judge Jacobs, dissenting below, claimed that

“le]xtraterritoriality need not be fussed over when the

information sought is already within the grasp of a

domestic entity served with a warrant... [that] can

reach what it seeks.” 855 F.3d 53, 61 (Jacobs, J.,

dissenting). Judge Lynch similarly concluded:

Corporate employees in the United States can

review [email] records, when responding to the

“warrant” or subpoena or court order just as they

can do in the ordinary course of business, and

provide the relevant materials to the demanding

government agency, without ever leaving their

desks in the United States. The entire process of

compliance takes place domestically.

829 F.3d at 229; see also 855 F.3d 53, 61 (Jacobs, J.,

dissenting) (“no extraterritorial reach is needed to

require delivery in the United States of the

information sought, which is easily accessible in the

United States at a computer terminal.”).

But intrusion into another sovereign’s domain,

whether physical or digital, cannot be brushed aside

so lightly. Judge Lynch’s conclusion — that the entire

process of compliance takes place domestically

because that is where human actions occur — rests on

the false assumption that human activity in one place

does not affect physical objects in another. As

explained above, production is only one step in a

larger process. And as a practical matter, physical

equipment must be manipulated where the ESI is

housed. Borders are crossed when ESI abroad is

accessed from the U.S. This becomes even clearer

when considering that if a party could retrieve

documents from a foreign country using a remote-

controlled drone, the drone’s intrusion would clearly

raise territoriality concerns. Retrieving data from a

computer in a foreign country is essentially no

different.’

7 Emails stored outside the U.S. are subject to the laws of the

sovereign at their location. In the immediate case, amicus briefs

filed with the Second Circwit explained that “the content of [the]

email account [at issue} ie located inside the EU and the

customer therefore must benefit from the protections #f EU law”

Albrecht CA2 Amicus Br. at & Swch benefits include that data

will not be transferred from the EU unless the recipient state has

in place safeguards ensuring the data receive equivalent

Aérospatiale’s holding did not depend on where the

people conducting discovery were standing, but on the

intrusion into the foreign sovereign. Courts in civil

cases have already conducted Aérospatiale’s comity

analysis where ESI is stored on foreign soil but is

accessible in the U.S. For example, in BrightEdge

Technologies, Inc. v. Searchmetrics, GmbH., the

plaintiff sought production of defendant’s data stored

on a server in Germany. No. 14CVOl009WHOMEJ,

2014 WL 3965062 (N.D. Cal. Aug. 13, 2014). The

plaintiff argued that because it sought information

from a customer relationship database that was being

accessed and used in the U.S. by the defendant's

employees, it was entitled to the documents. The

court disagreed, noting that “[t]o the extent that the

database is maintained in Germany, this factor

weighs in favor of not ordering disclosure... .”

Brightedge at *5.

Similarly, in Jn re Activision Blizzard, Inc., the

plaintiff sought production of the defendant's

documents stored on servers in France and subject to

French data protection laws. 86 A.3d 531 (Del. Ch.

2014). Although some electronic documents were

likely available through the defendant's domestic

subsidiary, and even originated in the U.S., the court

noted that “more importantly ... all of Vivendi’s

electronic documents are housed on its servers in

Paris. There are no backups in the United States .. .

.” Id. at 544. The Activision court rejected Plaintiffs

argument that because documents stored in France

were accessible through Vivendi’s U.S. subsidiary,

foreign law did not apply. Instead, it conducted a

protection. /d. (citing Parliament and Council Directive 95/46,

1995 O.J. (L. 281) 31, 45 (EC)); see also Regulation (EU) 2016/679,

General Data Privacy Regulation art. 46, 2016 O.J. (L 119) 1, 62.

comity analysis and ordered production in compliance

with che French Data Protection Act. Jd. at 550-52."

In the digital age — when foreign documents are

available in the U.S. and U.S. documents are

accessible abroad — Aérospatiale’s comity analysis

should not be limited by where the actors are

standing.

C. The Stored Communications Act

Demonstrates Why Comity Analysis And

Providing Due Respect To Foreign Laws

Is Crucial To The Rule Of Law.

The SCA is a useful prism to show how courts

should balance domestic and foreign interests,

because it implicates both. While the SCA allows the

U.S. government to seek production from domestic

parties, for the rest of the world it acts primarily as a

U.S. data protection law. Section 2710 of the SCA

permits service providers to disclose the content of

stored electrogic communications in only three

instances: (1 to the service provider, (2) to the

individual account holder, and (3) to law enforcement

as required under other provisions of the Wiretap Act

and SCA. These provisions require service providers

like Microsoft to block foreign discovery mechanisms.

For example, in Suzlon Energy Ltd. v. Microsoft

Corp., 671 F.3d 726 (9% Cir. 2011), the Ninth Circuit

ruled that a domestic service provider need not

comply with a request for emails arising from a civil

8 But see, S.E.C. v. Stanford Int'l Bank, Ltd., 776 F. Supp. 2d

323 (2011) (‘The Receiver appears to imply that requiring SG

Suisse to comply with his discovery request will not infringe upon

Swiss sovereignty because case law treats such production as

occurring within the United States. The Court agrees with the

Receiver's reading of precedent.”).

fraud proceeding in Australia against an Indian

citizen with email in the U.S. The defendant had a

Microsoft Hotmail account, and his emails happened

to be stored on a Microsoft server in Washington. The

Ninth Circuit affirmed that the SCA “at least applies

whenever the requested documents are stored in the

United States.” Jd. at 730. The court also pointed out

that the defendant “reasonably relied upon his

Hotmail service agreement, which stated that his

emails would be disclosed only according to U.S.

law....” Id. at 731. Consequently, the Ninth Circuit

allowed Microsoft to use the SCA to avoid production.

Even though the plaintiff had argued that Australian

law required production, the Ninth Circuit did not

perform Aérospatiale’s balancing test, and indeed did

not even consider it. /d.

Similarly, the court in Jn re Toft, 453 B.R. 186

(S.D.N.Y. 2011), reached a decision despite a

legitimate German discovery order. Toft, a German

citizen, was a debtor with no connection to the U.S.

except that his email accounts were there. The

German court entered a “Mail Intercept Order”

allowing a German administrator to intercept Toft’s

postal and electronic mail, and the administrator

sought an enforcement order from a U.S. bankruptcy

court. Jd. at 188. That court refused, finding the

German Order was “manifestly contrary” to U.S.

public policy because it contravened the SCA:

The relief ... is banned under U.S. law, and it

would seemingly result in criminal liability

under the Wiretap Act and the Privacy Act for

those who carried it out. The relief sought would

directly compromise privacy rights subject to a

comprehensive scheme of statutory protection,

available to aliens, built on constitutional

safeguards incorporated in the Fourth

Amendment as well as the constitutions of many

States. Such relief would impinge severely a U.S.

constitutional or statutory right.

Id. at 201, 198 (citations and quotations omitted).

In contrast, in a recent request under Section 2703

of the SCA, the District Court for the District of

Columbia held the U.S. government was entitled to

emails located abroad. In Jn re Search of Information

Associated with [redacted/@gmail.com that is Stored

at Premises Controlled by Google, Inc., Case No. 16-

mj-00757 (BAH), 2017 WL 3445634 (D.D.C. July 31,

2017), the court pointed out that companies operating

in more than one country might be subject to the

jurisdiction of two sovereigns. Tellingly, while the

court cited Aérospatiale to declare that the U.S. court

was not deprived of the ability to compel disclosure, it

ignored Aérospatiale’s comity analysis and did not

meaningfully weigh the interests of the other

jurisdiction even after recognizing them. /d. at *14.

These cases’ represent an inherent contradiction in

how courts interpret the SCA — and U.S. discovery

generally — when it crosses U.S. borders. Domestic

parties seeking foreign data often manage to evade

not only foreign statutes but also compliance with

international treaties. Foreign parties seeking U.S.

9 Indeed, this issue is more substantial than it may appear:

Google reported that, between January 1, 2017 and June 30,

2017, it received 48,941 requests for data from 83,345 accounts

from various governments, and that it complied with 65% of

them. Google Transparency Report available at

https://transparencyreport.google.com/user-data/overview (last

visited Dec. 12, 2017). Google received roughly the same number

of requests — taken together — from the governments of France,

Germany, and the '" K. as it did from the United States.

data, however, are often subject to U.S. data

protection laws and must follow those very treaty

processes that domestic parties can avoid. This

unequal treatment illustrates why U.S. courts must

afford “due respect” to foreign laws so that other

countries will reciprocate and continue to provide “due

respect” to ours.

Comity analysis can help. Here, as in Aérospatiale,

the SCA warrant involves international interests.

The United States contends that the SCA warrant is

purely domestic because it only requires production in

the U.S. (Pet. 14 (analyzing Section 2703; Br. for the

U.S. at 25)). This contravenes Aérospatiale’s holding

mandating a comity analysis. Jd. at 544. Just like the

relevant sections of the SCA, Federal Rule of Civil

Procedure 34 in 1987 spoke only to production. Fed.

R. Civ. P. 34(A)(1) (allowing parties to serve requests

“to produce ... designated documents” that were in

the opposing party’s control) (as amended in 1987)

(emphasis supplied). The rule does not mention

preservation, collection, or review, but production

requires all of those steps. The Aérospatiale Court

clearly understood that the mere fact that

production would occur domestically did not mean

that discovery would too. To effectuate production

the French companies would need to find and collect

documents in France and transfer them to the U.S.,

implicating French interests and French laws.

Here, even if no person in Ireland needs to act. »ome

of the conduct nonetheless occurs in a foreign siate:

emails will be identified, copied, and transmitted to

this country. Thus, even if production is a purely

domestic act, the prior steps invoke comity

considerations of the kind recognized in Aérospatiale.

Il. COURTS NEED ADDITIONAL GUIDANCE

TO PROPERLY WEIGH U.S. AND

FOREIGN INTERESTS.

Unfortunately, comitys value in _ principle

outweighs its value in practice. The Aérospatiale

Court warned trial courts to “exercise special

vigilance to protect foreign litigants from the danger

that unnecessary, or unduly burdensome, discovery

may place them in a disadvantageous position” and

explained that “[w]hen it is necessary to seek evidence

abroad ... the district court must supervise pretrial

proceedings particularly closely to prevent discovery

abuses.” Jd. at 546. By its own admission, however,

the Aérospatiale Court provided scant guidance to

lower courts on how to conduct a comity analysis. /d.

(“We do not articulate specific rules to guide this

delicate task of adjudication.”).

Trial courts have recognized the fifth factor — the

balancing of U.S. and foreign interests — as the most

important. See, e.g., Motorola Credit Corp. v. Uzan,

73 F. Supp. 3d 397, 401-02 (S.D.N.Y. 2014) (“[I]t must

not be forgotten that what we are concerned with here

is a comity analysis, and from that standpoint the

most important factor is the fifth factor ....”). Sadly,

the dissent in Aérospatiale rightly predicted that

courts would be “ill equipped to assume the role of

balancing the interests of foreign nations with that of

our own” because “relatively few judges are

experienced in the area and the procedures of foreign

legal systems are often poorly § understood.”

Aérospatiale, 482 U.S. at 552 (Blackmun, J.,

dissenting). Courts often either demonstrate a “pro-

forum bias” favoring familiar local laws and

procedures over unfamiliar foreign or treaty

procedures, or they allow judicial inexperience in

foreign relations to reach the same result. See id.; see

also Geoffrey Sant, Court-Ordered Law Breaking: U.S.

Courts Increasingly Order the Violation of Foreign

Law, 81 Brook. L. Rev. 181 (2015) (finding that

“[clourts applying the Aérospatiale test have found

each of the subjective factors to weigh in favor of U.S.

discovery (that is, in favor of violating foreign law) by

a ratio of at least four to one.”).

Indeed, courts overwhelmingly find that U.S.

interests in discovery are more important than

whatever foreign interests are at issue. See generally

Geoffrey Sant, Court-Ordered Law Breaking: U.S.

Courts Increasingly Order the Violation of Foreign

Law, 81 Brook. L. Rev. 181, 182 (2015). In the thirty

years since Aérospatiale, only a small minority of

cases have either required a requesting party to use

the Hague Convention or excused a responding party

from producing documents under Rules 26 and 34

because those documents were located abroad. See

Diego Zambrano, Comity of Errors: The Rise, Fall, and

Reiurn of International Comity in Transnational

Discovery, 34 Berkeley J. Int'l L. 157, 178 (2016)

(citing cases); see, eg. In re Payment Card

Interchange Fee & Merch. Disc. Antitrust Litig., No.

05-MD-1720 (JG)(JO), 2010 WL 3420517 (E.D.N-Y.

Aug. 27, 2010); In re Perrier Bottled Water Litig., 138

F.R.D. 348 (D. Conn. 1991); Reinsurance Co. of Am.

Inc. vy. Administratia Asigurarilor de Stat, 902 F.2d

1275 (7th Cir. 1990). Trial courts routinely find that

the U.S. courts’ search for truth or the U.S.

governments public interest in enforcing its

regulations trumps whatever foreign interest is

present. See, e.g., AstraZeneca LP v. Breath Ltd., No.

CIV. 08-1512 (RMB/AM), 2011 WL 1421800 (D.N.J.

Mar. 31, 2011) (Swedish Trade Secret Protection Act).

Worse, trial courts find this weighing of interests to

be dispositive in most cases. See, e.g., Munoz v. China

Expert Tech., Inc., No. 07 CIV. 10531(AKH), 2011 WL

5346323, at *2 (S.D.N.Y. Nov. 7, 2011) (“[The fifth]

factor alone is enough to tip the balance in favor of a

presumption of disclosure in this case”).

As U.S. interests in the search for truth and in law

enforcement exist in all cases, finding that these

trump all foreign interests in regulating data on their

soil effectively nullifies comity analysis — the

domestic interest is pre-ordained to win. See Diego

Zambrano, Comity of Errors: The Rise, Fall, and

Return of International Comity in Transnational

Discovery, 34 Berkeley J. Int'l L. 157, 202 (2016)

(reviewing court acknowledged U.S. interests and

finding that “courts halve] developed wildly

uninhibited categories, where U.S. interests [are]

seen as paramount without much explanation”).

When U.S. interests trump foreign interests almost by

default, this Court’s balancing test becomes a mere

box to check.

Treating comity as a formality does not show

adequate respect for foreign interests and inevitably

has created a backlash from other countries. See, e.g.,

Geoffrey Sant, Court-Ordered Law Breaking: U.S.

Courts Increasingly Order the Violation of Foreign

Law, 81 Brook. L. Rev. 181, 193 (2015) (“As court-

ordered law breaking has become common, foreign

governments have begun to express outrage.”); see

also Prop. All. Grp. Ltd. v. The Royal Bank of Scotland

PLC [2015] EWHC 321 (Ch) (U.K. court compels the

production of a document that a U.S. court had

ordered sealed).

Without more guidance, it is too easy for trial courts

to take a provincial view and put a finger on the scale

in favor of the requesting party and U.S. interests.

That is exactly what the Aérospatiale dissent

predicted. 482 U.S. at 553 n.4 (“There is also a

tendency on the part of courts, perhaps unrecognized,

to view a dispute from a local perspective.”) (quoting

Laker Airways, Lid. v. Sabena, Belgian World Airlines,

731 F.2d 909, 951 (1984)). This allows trial courts to

disregard the particularized analysis mandated in

Aérospatiale and order discovery under the Federal

Rules as a matter of course. See S.E.C. v. Stanford

Int'l Bank, Lid., 776 F. Supp. 2d 323, 327-28 (N.D. Tex.

2011) (criticizing courts for taking the wrong lessons

from Aérospatiale, “lallowing] litigants to obtain

discovery under the Federal Rules as of right” and

failing to exercise the “special vigilance” Aérospatiale

requires).

Indeed, courts want additional guidance to

supplement Aérospatiale. Judge Roth of the Third

Circuit has expressed concern that courts use

Aérospatiale as an excuse to avoid conducting an

analysis of foreign national interests. “Many times,

rather than wade through the mire of a complex set of

foreign statutes and case .aw, judges marginalize the

[Hague] Convention as an unnecessary ‘option.” /n re

Auto. Refinishing Paint Antitrust Litig., 358 F.3d 288,

806 (3d Cir. 2004) (Roth, J., concurring) (quoting

Aérospatiale) (internal citations removed). Judge

Roth advocates reexamining Aérospatiale “to ensure

that lower courts are in fact exercising ‘special

vigilance to protect foreign litigants’ and

demonstrating respect ‘for any sovereign interest

expressed by the foreign state” rather than “simply

discarding [the Hague Convention] as an unnecessary

hassle.” I/d.; see also, e.g., S.E.C. v. Stanford Int'l

Bank, Ltd., 776 F. Supp. 2d 323, 337 (N.D. Tex. 2011)

(“[A]ithough courts may accurately identify the

sovereign interests at play in a particular case, they

generally are not the proper bodies to weigh which

sovereign’s interests are more meritorious.”).

Ill. THIS COURT SHOULD PROVIDE

GUIDANCE ON HOW TO DEMONSTRATE

DUE RESPECT FOR FOREIGN

INTERESTS AND, IN PARTICULAR, HOW

TO WEIGH U.S. AND FOREIGN

SOVEREIGNS’ INTERESTS.

Judge Roth’s plea is anomalous, not because she

requests more guidance, but because she sits on an

appellate court. Because they are interlocutory, cross-

border discovery decisions rarely receive appellate

review. '© See Aérospatiale, 482 U.S. at 554

(“Exacerbating these shortcomings is the limited

appellate review of interlocutory discovery decisions,

which prevents any effective case-by-case correction of

erroneous discovery decisions.”) (footnote omitted)

(Blackmun, J., dissenting); In re Payment Card

Interchange Fee & Merch. Disc. Antitrust Litig., No.

05-MD-1720 (JG)JO), 2010 WL 3420517, at *7

(E.D.N.Y. Aug. 27, 2010) (noting that the “relative

dearth of appellate decisions makes it more difficult

to identify a coherent body of doctrine”). This

hampers development of a robust jurisprudence. !!

10 In fact, only 52 Circuit Court cases cite

compared to 400 published District Court cases (as of December

12, 2017 on WestLaw).

'! The Sedona Conference has stepped into the void to create

a dialogue among the bench, the bar, litigants and foreign data

protection practitioners and authorities to move the law forward

in a just and reasoned way. See Sedona International Principles

on Discovery, Disclosure & Data Protection in Civil Litigation

(Transitional Edition) (January 2017) (published after engaging

Clarifying this area of law will also help incentivize

nations to create effective, practical mechanisms that

simultaneously allow for reasonable international

discovery and reasonable protection of local interests.

Ideally, if the United States knows discovery will be

conducted using treaties, it will want to negotiate

practical ones and limit perceived discovery abuses

and fishing expeditions. Likewise, foreign nations

will know that if they negotiate effective treaties they

will be followed, but that cumbersome procedures will

fail under a comity analysis and will consequently be

ignored in the U.S.

In the best of cases, treaties take many years to

negotiate. Thus, the Court should take this

opportunity now to build upon Aérospatiale and

provide guidance to trial courts on how to conduct the

analysis and, in particular, how to weigh domestic and

foreign interests more objectively.

A. The Court Should Articulate A

Procedural Framework For Courts To

Consider The Aérospatiale Factors.

First, while courts need guidance on how to weigh

foreign and U.S. interests, they also need assistance

in identifying how and when to conduct the comity

analysis. This will help create a set of level and

neutral scales to balance competing interests.

In accordance with Aérospatiale, whenever there is

a conflict between foreign law and U.S. discovery

procedure, the trial court should conduct a comity

analysis to determine if the requesting party should

be required to use a foreign discovery mechanism.

with “members of the judiciary, data protection authorities, and

government officials from beyond the U.S. and EU, including

from Asia, Canada, Australasia, and Africa.”).

It should be incumbent on the producing party to

establish the existence and scope of the conflict,

including any mechanisms, like the Hague

Convention, that could be used to avoid it. In the

interests of comity and the rule of law, however, it

should be incumbent on the requesting party — who

is advocating violating foreign law — to establish that

the discovery is necessary and that the U.S. interest

in the discovery is more important than the foreign

interest at issue. See Sedona International Litigation

Principles, Principle 3 (“Preservation, disclosure, and

discovery of Protected Data should be limited in scope

to that which is relevant and necessary to support any

party’s claim or defense in order to minimize conflicts

of law and impact on the Data Subject.”).

Of course, courts should not waste time on a full

comity analysis if it will be pointless. As the

Aérospatiale dissent recognized, there is no point in

conducting the analysis if it is either (1) futile; or (2)

the treaty has been tried and proven to be unhelpful

and/or unproductive. Aérospatiale, 482 U.S. at 549.

In the rare case where the responding party cannot

provide an effective and compliant mechanism — such

as the Hague Convention or MLAT — the question

becomes not whether the requesting party must use a

treaty, but whether they are entitled to the

documents. If the requesting party is entitled to the

documents and there is no effective, compliant legal

method to obtain them — such as where there is no

treaty and a blocking statute — then the analysis is

futile. Moreover, if the requesting party attempts to

obtain documents legally through a treaty or other

mechanism and it is either unreasonably denied or

progress is unreasonably slow, conducting a comity

analysis that forces the requesting party back into an

unproductive process is a waste of judicial and litigant

resources.

Finally, if a party has acted in bad faith and moved

documents or ESI out of the U.S. only to avoid

production, the responding party's bad faith should

deprive it of the benefit of the comity analysis. C/. Jn

re Vitamins Antitrust Litig., No. 99-197TFH, 2001 WL

1049433, at *6 (D.D.C. June 20, 2001) (ordering

production without geographic limitation where

“foreign defendants may have transferred key

documents to their unnamed foreign affiliates to

prevent plaintiffs from discovering this

information.”).

B. The Court Should Provide Additional

Guidance On Weighing Foreign Interests.

Second, courts need help evaluating foreign

interests so they can objectively compare them with

U.S. interests. One question that this Court could

answer for lower courts is whether they should

differentiate between blocking statutes and

substantive laws. One of the unfortunate

consequences of Aérospatiale is that because the

Court was so dismissive of the French Blocking

Statute, French Penal Code Law No. 80-538 — a

statute that the Court found “was originally inspired

to impede enforcement of United States antitrust

laws,” Aérospatiale, 522 U.S. at 527 — lower courts

have been equally dismissive of all foreign interests

including substantive laws. See, e.g., Motorola Credit

Corp. v. Uzan, 73 F. Supp. 3d 397, 402 (S.D.N.Y. 2014)

(stating that French, Swiss, Jordanian, and UAE laws

“suggest .. . a strong competing interest. But is this

for real?’). While some courts have distinguished

between different foreign interests embodied in a

variety of local laws, many have not. Compare

Reinsurance Co. of Am. v. Administratia Asigurarilor

de Stat (Admin. Of State Ins.), 902 F.2d 1275, 1280

(7 Cir. 1990) (finding that Romanian law was

“directed at domestic affairs rather than merely

protecting Romanian corporations from foreign

discovery requests”) with Munoz v. China Expert

Tech., Inc., No. 07 CIV. 10531 (AKH), 2011 WL

5346323, at *2 (S.D.N.Y. Nov. 7, 2011) (China’s

interest in production under state secrecy law

“speculative.”).

Foreign laws that create substantive rights and

obligations with respect to documents § and

information demonstrate a real foreign interest that,

in the words of Aérospatiale, deserves due respect. In

contrast to laws designed merely to thwart U.S.

discovery, substantive laws protect interests of the

sovereign and its people. Respectfully, Amici urge the

Court to indicate to courts the importance of

respecting substantive foreign laws. Courts should

carefully consider whether to require responding

parties to violate substantive foreign laws in the

course of ordinary U.S. discovery. This is especially

important where foreign laws provide rights to third-

parties not directly involved in the action.

Indeed, this case raises this very distinction. As

Microsoft and severai amici argued in the Second

Circuit, Ireland and other EU member states have

enacted data protection laws including the EU

General Data Protection Regulation (GDPR). Data

Protection Act of 1988 (amended 2003) (amended to

reflect EU Directive 95/96/EC); ePrivacy Regulations,

S.1. 336 of 2011 (codifying EU Directive 2009/136/EC

(as amended by Directive 2006/24/EC and

2009/136/EC)). Data protection is considered a

fundamental human right in the EU and is

incorporated in the Charter of Fundamental Rights of

the European Union. See Regulation (EU) 2016/679,

General Data Privacy Regulation recital 1, 2016 O.J.

(L. 119) 1; Charter of Fundamental Rights of the

European Union art. 7, 2012 O.J. C 326/02. These

laws provide substantive rights to EU citizens and

residents, give them control of their personal data,

and impose obligations on data controllers and

processers to process or transfer personal data only in

a lawful and fair manner. See Verizon CA2 Amicus

Br. at 11-12, Microsoft Corp. v. United States, No. 14-

2985-cv (2nd Cir. Dec. 15, 2014.) (stressing that many

countries value privacy as a fundamental right, and

that U.S. overreach “would create a dramatic conflict

with foreign data protection and privacy laws .. .

[that] would expose U.S. companies and their

personnel to potential civil and criminal liability.”).

These laws would exist regardless of any discovery

demands and demonstrate an interest by EU Member

States in protecting the Personal Data of citizens and

residents.

Additionally, many countries have other laws that

regulate how companies and organizations manage

information, including labor and employment laws,

general privacy regulations, telecommunication and

other industry laws and professional secrecy laws.

See, e.g., Code du travail [Labor Code] art. 432-2-1

(Fr.) (requiring employers to consult with an EU

works council before implementing employee

monitoring technologies). Similar to classic data

protection laws, these statutes can limit or prohibit

certain discovery processes.

Importantly, review of the case law and literature

shows an insidious argument that threatens the

foundation of comity: that all foreign laws should be

ignored because they are simply a tool for avoiding

discovery. See, e.g., Gucci Am., Inc. v. Curveal

Fashion, No. 09 CIV. 8458 RJS/THK, 2010 WL 808639,

at *2 (S.D.N.Y. Mar. 8, 2010); see also, e.g., Ellen

Relkin and Elizabeth O. Breslin, Hiding Across the

Atlantic, 48 JUN Trial 14, 14 (2012) (arguing that

companies “increasingly . . . block discovery by hiding

behind European privacy laws” and warning that

“(t]he plaintiff bar should be aware of this pernicious

tactic and be armed with a strategy for a strong

response.”). Beyond showing a lack of understanding

and being openly disrespectful to the foreign

sovereigns, this argument ignores the practical reality

that companies are equally prohibited from producing

protected data documents that would help their case.

This Court should also address whether the

enforcement history of a foreign statute should affect

comity analysis. Some courts have considered

whether a producing party would suffer undue

“hardship” if it had to produce the requested

documents. See, eg., Minpeco, SA. _ v.

Conticommodity Servs., Inc., 116 F.R.D. 517, 522-523

(S.D.N.Y. 1987). While not in the original factors,

several courts have looked at this issue by assessing

the risk of actual enforcement of the foreign law at

issue. See, e.g., Trueposition, Inc. vy. LM Ericsson Tel.

Co., No. 11-4574, 2012 WL 707012 (E.D. Pa. Mar. 6,

2012). Commentators have criticized this approach.

See, e.g., Brian Friederich, Reinforcing the Hague

Convention on Taking Evidence Abroad After Blocking

Statutes, Data Protection Directives, and Aérospatiale,

12 San Diego Int’! L. J. 263, 292-94, (2010) (suggesting

that regardless of how a court determines the

enforcement factor, the result will be unfair to

litigants).

While the level of enforcement facially may appear

to distinguish real foreign sovereign interests from

pretextual ones, this consideration gives courts an

excuse to ignore the interests of other countries. After

all, U.S. courts do not consider whether domestic laws

are actually enforced; they presume, correctly, that if

Congress enacted them, then they deserve respect.

Moreover, focusing on “enforcement” skews the

analysis in a number of ways. For example, by

focusing on actual enforcement courts ignore

prosecutorial discretion and non-public enforcement

means common outside the U.S. It is even harder to

assess recently-enacted statutes and emerging

regulatory frameworks by this standard, especially

from the developing world. Moreover, it creates a

perverse incentive to escalate enforcement and

penalties so that U.S. courts will take foreign laws

seriously. For example, the failure of companies,

especially U.S. companies, to take data protection

seriously in the EU, including in the process of

responding to U.S. government demands, was one

motivation behind the GDPR.!2

C. The Court Should Provide Better

Guidance On Objective Consideration Of

U.S. Interests.

In addition to guidance to prevent courts from

undervaluing foreign interests, this Court should also

provide guidance on properly weighing domestic

12 Viviane Reding, Vice-President, Eur. Comm'n, Data

Protection Reform: Restoring Trust And Building The Digital

Single Market (Sept. 17, 2013) (advocating for the GDPR as a

centralized data protection law to prevent the transfer of data to

the U.S. and incentivize compliance with EU law when

companies face a conflict of laws), available at

http://europa.eu/rapid/press-release_SPEECH-13-720_en. htm.

interests. The Court could assist courts in

understanding and eliminating undue bias in favor of

U.S. discovery procedures. This Court could help

rebalance the scales by emphasizing that U-S.

discovery is much broader than _ permitted

elsewhere,!3 Aérospatiale, 482 U.S. at 542, and that

the search for truth cannot always be more important

than foreign sovereigns’ interests.

Indeed, U.S. interests are more complex than most

courts often imply. The U.S. has an interest in

upholding the rule of law, in mitigating and

eliminating international conflict, and in maintaining

amicable relations with international neighbors. As

the Restatement (Third) on Foreign Relations states:

In making the necessary determination of the

interests of the United States .. ., the court or

agency should take into account not merely the

interest of the prosecuting or investigating

agency in the particular case, but the long-term

interests of the United States generally in

international cooperation in law enforcement

and judicial assistance, in joint approach to

problems of common concern, in giving effect to

formal or informal international agreements,

and in orderly international relations.

13 “The differences between discovery practices in the United

States and those in other countries are significant, and ‘[n]jo

aspect of the extension of the American legal system beyond the

territorial frontier of the United States has given rise to so much

friction as the request for documents associated with

investigation and litigation in the United States.” Aérospatiale,

482 U.S. at 549 (Blackmun, J., dissenting) (quoting Restatement

of Foreign Relations Law of the United States (Revised) § 437,

Reporters’ Note 1, p. 35 (Tent. Draft No. 7, Apr. 10, 1986)).

Sec. 442, cmt. c. These considerations are rarely

factored into comity analysis, and according them

their proper weight would appropriately balance

comity analysis.

Finally, not all matters and discovery have equal

value. For example, the interests of a government

entity seeking to protect the public good likely deserve

more weight than a private complainant’s interests.

Thus, when seeking information outside the U.S.

without using mechanisms acceptable under foreign

law, the requesting party, especially a private party,

should show how the information sought is necessary

to protect the public interests of the U.S. and its

citizens, not just the litigant’s private interests.

D. Where A Conflict Remains, Courts Should

Minimize It As Much As Is Reasonably

Possible.

Finally, the Court should emphasize that even

where it is not appropriate to require parties or law

enforcement agencies to resort to treaty-based

provisions, courts should take every reasonable step

to minimize or eliminate the conflict even where it

takes longer, imposes reasonable burdens, and does

not unreasonably limit the scope of allowed discovery.

As this Court held in Aérospatiale:

Judicial supervision of discovery should always

seek to minimize its costs and inconvenience and

to prevent improper uses of discovery requests.

When it is necessary to seek evidence abroad,

however, the district court must supervise

pretrial proceedings particularly closely to

prevent discovery abuses. . . . Objections to

“abusive” discovery that foreign litigants

advance should therefore receive the most

careful consideration.

482 U.S. at 546.

Where possible, courts should use the tools at their

disposal to eliminate or mitigate cross-border conflicts.

The Sedona Conference’s International Litigation

Principles provide some tools to do this:

(1) Limiting the scope of requests and requiring

more specificity in requests that seek

documents;!4

(2) Phasing discovery to prioritize production

from U.S. sources which may limit the need to

reach across borders;

(3) Using redaction, anonymization, and

psuedonymization to limit disclosure of protected

data;

(4) Producing documents in appropriate formats

to minimize the unnecessary production of

irrelevant protected data and provide data

security; and

(5) Using protective orders and sealing orders to

limit the disclosure and use of protected data.

Id. at 20-23 (Principles 4 and 5) (“Where a conflict

exists between Data Protection Laws and

preservation, disclosure, or discovery obligations, a

14 Not all requests serve the same interest or are equally

important. Where there is a conflict with foreign laws, courts

should ask whether the information is necessary to resolving the

dispute, or merely relevant. See Aérospatiale, 283 U.S. at 546.

Requesting parties should be asked to narrow their requests to

what they actually need and it should be understood that

discovery will not be as broad outside as it is within the U.S. See

Sedona International Litigation Principles, Principle 3.

stipulation or court order should be employed to

protect Protected Data and minimize the conflict.”).

Some courts have been adopting these measures,

but guidance from the Court would help. See, e.g.,

Moore vy. Publicis Groupe, 287 F.R.D. 182, 186

(S.D.N.Y. 2012), adopted sub nom. Moore v. Publicis

Groupe SA, No. 11 CIV. 1279 ALC AJP, 2012 WL

1446534 (S.D.N.Y. Apr. 26, 2012) (citing Sedona

International Litigation Principles and excluding

French employee whose emails were “stored in France

and likely would be covered by the French privacy and

blocking laws” from first production phase); see also In

re: Xarelto (Rivaroxaban) Prod. Liab. Litig., No. MDL

2592, 2016 WL 3923873 at *19-20 (E.D. La. July 21,

2016) (redacting production in compliance with

Germany’s data protection law); St. Jude Med. S.C.,

Inc. v. Janssen-Counotte, 104 F. Supp. 3d 1150, 1164

(D. Or. 2015) (documents containing protected data to

be designated for attorneys’ eyes only and filed under

seal).

These tools are the last line of defense where the

Court has recognized the conflict and, after

conducting a comity analysis, required production

without resort to a treaty. To enable a party to

substantially comply with both its U.S. and foreign

obligations, courts may need to consider more creative

and broader solutions than in purely domestic

matters.'5 For example, courts may allow a company

to redact Personal Data (including individuals’ names

and email addresses), then require the requesting

party to identify a smaller cut of necessary materials

to be unredacted. See Article 29 Data Protection

15 However, there is more latitude for such measures in civil

than in crimina’ and law enforcement matters.

Working Party (“WP”), WP 158, 11 February 2009 at

11;16 Bavarian SA, Activity report 2009/2010 at 70 et

seq.'7 Such accommodations would go a long way to

demonstrating due respect for foreign sovereigns and

law by facilitating compliance while ensuring that U.S.

discovery obligations are met.

At the same time, courts need to consider the

additional cost and burden of conducting cross-border

discovery. U.S. rules require that the documents

sought be incrementally more valuable in order for the

discovery to be proportionate and not outside the

scope of discovery. In re Bard IVC Filters Prod. Liab.

Litig., 317 F.R.D. 562, 566 (D. Ariz. 2016). Otherwise,

courts will fail to undertake the “special vigilance to

protect foreign litigants from .. . unnecessary, or

unduly burdensome, discovery. . . .” mandated by

Aérospatiale. 482 at 546.

CONCLUSION

As the parties and the amici below readily agree, the

best solution for resolving this conflict is through

Congress and international treaties. Until that

happens, the Court has proven safeguards and

principles to help manage and mitigate conflicts when

U.S. discovery intrudes on another sovereign’s domain.

However the Court rules on the merits of this action,

Amici respectfully request that it re-emphasize the

importance of an objective and neutral comity

analysis when conducting cross-border discovery and

provide guidance on how courts should conduct that

16 Available at http://ec.europa.eu/justice/data-protection/

article-29/documentation/opinion-recommendation/files/2009/

wp 158_en.pdf (last visited Dec. 12, 2017).

17 Available at https://www. Ida. bayern. de/media/baylda

_report_04.pdf (last visited Dec. 12, 2017).

analysis to afford due respect for foreign sovereign

interests.

Respectfully submitted,

DAVID KESSLER*

Counsel of Record

NORTON ROSE FULBRIGHT US LLP

1301 Avenue of the Americas

New York, NY 10019-6022

(212) 318-3382

david. kessler@

nortonrosefulbright.com

Counsel for Amici Curiae

ADDENDUM

AMICI CURIAE

Institutional Amici

The E-Discovery Institute (“EDI”) is a

registered 501(c)(3) non-profit organization dedicated

to bipartisan education, leadership, service, advocacy

and research at the intersection of law and

technology. The EDI community comprises corporate

counsel, private practitioners, judges, professors of

law and science, consultants, technologists and

experts, and its activities focus on discovery,

information governance, cybersecurity, litigation and

big data management. For the last three years, EDI

has collaborated with the Federal Judicial Center to

provide training for federal judges and magistrate

judges.

Deere & Company is one of the oldest industrial

companies in the United States. Deere manufactures

agricultural, construction, forestry, engine and lawn

care products. Since its founding in 1837, Deere has

delivered products and services to support those

linked to the land.

Freddie Mac is a publicly traded government-

sponsored enterprise (GSE) created to expand the

secondary market for mortgages in the U.S. by buying

mortgages on the secondary market, pooling them,

and selling them as mortgage-backed security to

investors world-wide on the open market.

Bayer U.S. LLC is an enterprise with core

competencies in the Life Science fields of health care

and agriculture. Its products and services are

designed to benefit people and improve their quality

of life.

Gilead Sciences, Inc. is a_ research-based

biopharmaceutical company that discovers, develops

and commercializes innovative medicines in areas of

unmet medical need. It strives to transform and

simplify care for people with life-threatening illnesses

around the world. Gilead’s portfolio of products and

pipeline of investigational drugs includes treatments

for HIV/AIDS, liver diseases, cancer, inflammatory

and respiratory diseases, and cardiovascular

conditions.

GlaxoSmithKline LLC is a science-led global

healthcare company. GSK has three world-leading

businesses that research, develop and manufacture

innovative pharmaceutical medicines, vaccines and

consumer healthcare products. It is committed to

widening access to our products, so more people can

benefit, no matter where they live in the world or what

they can afford to pay. GSK is on a mission to help

people do more, feel better, live longer.”

Pfizer Inc.

Individual Amici

Denise E. Backhouse is a Shareholder and

eDiscovery Counsel at Littler Mendelson, P.C. Denise

serves on the Steering Committee of The Sedona

Conference® Working Group 6 on International

Discovery and is_ Editor-in-Chief of Sedona’s

International Principles on Discovery, Disclosure and

Data Protection in Civil Litigation (Transitional

Edition), and International Principles for Addressing

Data Protection in Cross-Border Government &

Internal Investigations.

Steven C. Bennett is a partner at Park Jensen

Bennett LLP. He teaches a course in the E-Discovery

process at Hofstra Law School. He is a member of the

NYSBA Commercial Federal Litigation Sub-

Committee on E-Discovery, and a founding member of

The Sedona Conference® Working Group 6 on

International Discovery.

Susan I. Bennett is Principal of Sibenco Legal &

Advisory based in Sydney, Australia. Susan is an

Australian lawyer. She is the Co-founder and

Director of Information Governance ANZ and active

member of The Sedona Conference® Working Group

6 on International Electronic Information

Management, Discovery and Disclosure.

Tess Blair is a partner at Morgan, Lewis & Bockius

LLP and founder and leader of the firm’s eData

practice group. Tess’s practice has focused on

eDiscovery and information governance for over 15

years and she and her team regularly represent global

organizations in matters involving cross-border

discovery. Tess has taught eDiscovery at Villanova

School of Law and has served as Special eDiscovery

Master in the Federal courts.

Daniel M. Braude is a partner at Wilson Elser

Moskowitz Edelman & Dicker LLP and co-chair of the

firm’s E-Discovery Practice Team. Dan serves as an

adjunct professor at the Elisabeth Haub School of Law

at Pace University where he teaches a course on e-

Discovery. He is a member of The Sedona

Conference® Working Group 6 on International

Discovery.

Michelle Briggs is e-discovery counsel at Goodwin

Procter. Michelle is an active member of The Sedona

Conference® Working Group 1 on _ Electronic

Document Retention and Production, and The Sedona

Conference® Working Group 11 on Data Protection

and Security.

Patrick J. Burke is Counsel to Bennett & Samios

LLP in New York City where he counsels clients on

cross-border e-discovery, data privacy and security.

He has taught law school courses on eDiscovery and

information governance and is the Co-founder of the

Cardozo Data Law Initiative at the Benjamin N.

Cardozo School of Law.

Craig D. Cannon is Global Discovery Counsel at

Kilpatrick, Townsend & Stockton LLP and the leader

of the firm’s E-Discovery and Information Governance

Team. Craig was formerly Global Discovery Counsel

for a major global financial institution and is an active

member of The Sedona Conference® Working Group

6 on International Discovery.

David R. Cohen is a Partner at Reed Smith LLP,

where he is Practice Group Leader of the Records &

E-Discovery Practice Group. He is active in The

Sedona Conference® Working Group 6 = on

International Discovery, Chairs the International

Ambassadors Section of the Duke Law School/EDRM

Cross-Border Discovery Committee, and has been

appointed as an E-Discovery Special Master in

multiple federal cases.

Therese Craparo is a partner at Reed Smith LLP

in the Firm’s IP, Tech and Data and Records &

eDiscovery groups. Therese has been an eDiscovery

practitioner for more than 15 years, advising multi-

national organizations on data privacy and cross-

border data transfers. She is a frequent presenter at

continuing legal education seminars regarding

eDiscovery, including cross-border discovery.

Chris Dale is an English lawyer who has for many

years provided education and commentary on all

aspects of electronic discovery, both domestically and

in an international (particularly U.S.) context,

including a particular focus on privacy and data

protection, and on cross-border litigation. He is a

member of The Sedona Conference® Working Group

6 on International Discovery.

Andrea L. D’Ambra is a partner at Norton Rose

Fulbright US LLP and member of the firm’s E-

Discovery and Information Governance Group.

Andrea teaches Electronic Discovery at Temple Law

School and William and Mary School of Law. She is

an active member of The Sedona Conference®

Working Group 6 on International Discovery.

Anthony J. Diana is a partner at Reed Smith LLP

in the Firm’s IP, Tech and Data and Records &

eDiscovery groups. Anthony serves as eDiscovery and

global data privacy counsel for large, multinational

organizations addressing cross-border data transfers

and eDiscovery. He is key member of Working Group

1 of The Sedona Conference®, selected for

participation in sub-committees tasked with

providing comments to the Rules Committee on the

proposed amendments to the Federal Rules of Civil

Procedure and with revising the Sedona Principles

Maureen A. Duffy is a Senior Consultant of

Sibenco Legal & Advisory based in Melbourne,

Australia and is a licensed lawyer both in the U.S. and

Australia, and a member of the member of The Sedona

Conference® Working Group 6 on International

Discovery.

Amor Esteban is a trial lawyer with more than 30

years’ experience. Amor has been a thought leader in

e-discovery for almost 20 years and was one of the

founding members of The Sedona Conference®. Amor

is former chairman of Sedona's Working Group 6 on

International Discovery and was the Editor-in-Chief

of Sedona's original International Principles.

Robert B. Friedman is a partner at King &

Spalding. He is a member of the firm’s E-Discovery

Practice Group and regularly counsels multinational

entities on discovery matters.

Ignatius A. Grande is an eDiscovery attorney who

has practiced at global law firms for more than ten

years. Ignatius teaches a course on eDiscovery at St.

John’s University School of Law and is a member of

the Executive Committee of the Commercial &

Federal Litigation Section of the New York State Bar

Association. He received his B.A. from Yale

University and his J.D. from Georgetown University

Law Center.

Jennifer Hamilton is senior counsel and global

head of Deere’s Electronic Discovery Practice Group

and the Global Evidence Team. Jenny participates in

The Sedona Conference® Working Group 6 on

International Discovery. Jenny co-chairs the

Corporate Counsel group and is the Editor-in-Chief of

The Sedona Conference® Practical In-House

Approaches for Cross Border Discovery and Data

Protection.

Susan N. Hammond practices in-house, as Senior

Counsel in Enterprise Litigation for electronic

discovery at United Services Automobile Association

(USAA), and signs this brief in her personal capacity.

Susan is an active member of The Sedona

Conference® Working Group 6 on International

Discovery.

Taylor M. Hoffman is an eDiscovery attorney and

serves as Chairperson of the Steering Committee of

The Sedona Conference® Working Group 6 on

International Discovery and as an editor of both

Sedona’s International Principles on Discovery,

Disclosure and Data Protection in Civil Litigation

(Transitional Edition), and International Principles

for Addressing Data Protection in Cross Border

Government & Internal Investigations.

Jerami D. Kemnitz is an eDiscovery attorney and

an active member of The Sedona Conference®

Working Group 6 on International Discovery. He is a

Contributing Editor of The Sedona Conference®

International Principles on Discovery, Disclosure

Data Protection in Civil Litigation and a Contributing

Editor of The Sedona Conference® Practical In-House

Approaches for Cross-Border Discovery & Data

Protection.

David J. Kessler is a partner at Norton Rose

Fulbright US LLP and chair of the firm’s E-Discovery

and Information Governance Group. David teaches

“E-Discovery” at the University of Pennsylvania

School of Law and is an active member of The Sedona

Conference® Working Group 6 on International

Discovery.

Laura Kibbe is an e-discovery attorney whose

practice focuses on coordinating discovery for

multinational corporations. She is a member of The

Sedona Conference® Working Group 6 on

International Discovery and is a frequent speaker on

topics relating to cross-border discovery.

Shannon Capone Kirk is E-Discovery Counsel at

Ropes & Gray. Shannon is an active member of The

Sedona Conference® Working Group 1 on Electronic

Document Retention and Production, and co-author of

Chapter 10 of The Electronic Discovery Institute’s The

Federal Judges’ Guide to Discovery (3rd ed. 2017).

Anthony S. Lowe serves as associate general

counsel at the Federal Home Loan Mortgage

Corporation (Freddie Mac) and managing attorney of

its litigation operations group. He has also worked

developing policy in the areas of law and technology

for over two decades both as a presidential appointee

with senate confirmation at the U.S. Department of

Homeland Security, and as a senior counsel on the

U.S. Senate Judiciary. He speaks and writes

extensively in the areas of eDiscovery, privacy,

information governance and cyber _ security,

participating as faculty on various panels in

connection with The Sedona Conference®, ABA, the

Electronic Discovery Institute and the Association of

Corporate Counsel.

Scott A. Milner is a partner and co-leader of

Morgan, Lewis & Bockius LLP’s eData practice. Scott

counsels and advises companies in_ electronic

discovery and information governance processes and

best practices. Scott is a frequent speaker at

continuing legal education classes (CLE), seminars,

and webcasts and an active member of a number of

organizations including The Sedona Conference®.

David S. Moncure is an attorney at Shell Oil

Company who advises on international eDiscovery

10a

and data protection issues. David is an active member

of The Sedona Conference® Working Group 6 on

International Discovery and is the Vice Chair of The

Sedona Conference® Working Group 11 on Data

Protection and Security.

Patrick Oot is a partner at Shook, Hardy & Bacon,

L.L.P. and chair of the firm’s Data and Discovery

Strategies Group. Patrick previously served as Senior

Counsel for Electronic Discovery at the United States

Securities and Exchange Commission and Senior

Litigation Counsel at Verizon. Outside of work,

Patrick volunteers his time as a founder of the non-

profit Electronic Discovery Institute.

Robert Owen is Partner in Charge of the New York

office of Eversheds Sutherland. He is a nationally

recognized expert in e-discovery and an experienced

litigator. He is President of the Electronic Discovery

Institute and editor-in-chief of EDI’s The Federal

Judges’ Guide to Discovery (3rd ed. 2017).

Farrah Pepper is an award-winning attorney and

industry thought leader with deep experience and

expertise in electronic discovery. Ms. Pepper has a

long history of building and leading teams focused on

domestic and cross-border electronic discovery,

including founding the electronic discovery practice

group at a global law firm and, most recently, creating

and leading the discovery team at a large Fortune 100

company operating in some 180 countries. Ms. Pepper

received her B.A., summa cum laude, from New York

University and her J.D. from the New York University

School of Law.

lla

Daniel Regard is the CEO of Intelligent Discovery

Solutions. He is an internationally recognized expert

on technology and e-discovery. He regularly teaches,

writes, speaks, consults and testifies on these topics.

He is an active member of The Sedona Conference®

Working Group 6 on International Discovery.

John J. Rosenthal is an antitrust and commercial

litigation partner in the firm's Washington, D.C.

office, who represents clients around the globe in an

array of complex antitrust and commercial litigation

matters. Mr. Rosenthal is also the chair of the firm's

eDiscovery & Information Governance Practice

Group. He is a former member of the Steering

Committee of Working Group 1 of The Sedona

Conference® and a member of The Second

Conferences Working Groups 6 (International

Discovery) and Discovery 11 (Data Security and

Privacy).

Ronni Dawn Solomon is a partner at King &

Spalding LLP and leads the e-discovery practice. She

is on the Steering Committee of The Sedona

Conference® Working Group 1 on_ Electronic

Document Retention and Production and is Co-Editor

of Sedona’s Primer on Social Media.

David L. Stanton is a litigation partner at

Pillsbury Winthrop Shaw Pittman LLP. He leads the

firm’s Information Law and Electronic Discovery

practice group, and he has been working in this field

for over 15 years. David serves on the on the

12a

Educational Advisory Board for LegalTech, and he is

a member multiple professional organizations

including The Sedona Conference® Working Group 1.

David oversees Pillsbury’s in-house discovery services

center, which manages substantial volumes of client

data for litigation and investigations, and he regularly

represents global organizations engaged in cross-

border discovery. David received his B.A. from St.

John’s College in Santa Fe, New Mexico, and his J.D,

from Berkeley Law.

Dee Dee Stephens is an attorney licensed in Texas

and California and has been practicing E-Discovery in

both law firm and corporate settings for over 10 yrs.

She has participated in and lead each phase of the E-

Discovery process in both national and international

matters. Dee Dee also counsels clients on the

implementation and execution of defensible E-

Discovery processes.

Miles Stiles has served as in-house counsel for the

last 4 and a half years at an international company

specializing in drilling services and the construction

and installation of pipelines for the oil and gas

industry.

Martin T. Tully is a litigation partner with the

Chicago office of Akerman LLP and is Co-chair of the

firm’s Data Law Practice. He serves on the steering

committee of The Sedona Conference® Working

Group 1 on Electronic Document Retention and

Production, The Sedona Conference® Working Group

11 on Data Security and Privacy Liability, and the 7th

Circuit E-Discovery Pilot Program Committee.

13a

Paul Weiner is a Shareholder and National

eDiscovery Counsel at Littler Mendelson, P.C. He

serves as Co-Chair of the Advisory Board for the

Georgetown Law Advanced eDiscovery Institute® and

on the Steering Committee of The Sedona

Conference® Working Group 1 on_ Electronic

Document Retention and Production, and is Editor-in-

Chief of Sedona’s Commentary on Rule 34 and Rule

45 Possession, Custody, or Control. Mr. Weiner has

also served as a court-appointed eDiscovery Special

Master in federal and state courts.

Kenneth J. Withers is Deputy Executive Director

of The Sedona Conference®. Since 1989, he has

taught more than 500 Continuing Legal Education

courses in the U.S. and Canada for judges and

practitioners on the identification, preservation,

collection, review, production, and admission of

electronic data in civil litigation and criminal

proceedings. From 1999 through 2005, he was a

Research Associate and Senior Education Attorney at

the Federal Judicial Center, where he was an original

member of the Joint DOJ/AOUSC Electronic

Technology Working Group (JETWG).

Patr’ck E. Zeller is the Enterprise Privacy Officer

and wenior Corporate Information Governance

Counsel at Gilead Sciences, Inc. He has served as an

adjunct professor and taught law school courses on E-

Discovery and information governance since 2006.

Patrick is also a member of The Sedona Conference®

and is a Certified Information Privacy Professional

(CIPP/US).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.