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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0768%3A18

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2018

## Text

IN THE

Supreme Court of the United States

UNITED STATES,

Petitioner,
v.

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

iv
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

v

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

vi
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
at
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

ix
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,
v.

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.

2

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

3

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

4

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:

5

(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.

6

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.

7

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.

8

“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

9

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.

10

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

11

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

12

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.

13

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.”).

14

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

15

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.

16

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.

17

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

18

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).

19

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

20

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)

21

(“[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

22

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.”).

23

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

24

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

25

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

26

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

27

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).

28

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.

29

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)).

30

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

31

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.

32

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.

33

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).

34

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

la
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.

2a

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

3a

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.

da

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.

5a

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

6a

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

7a

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

8a

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.

9a

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).

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0768%3A18. Public record. Not legal advice.