The Sedona Conference Has Released a Commentary on Cross-Border Privilege Issues: eDiscovery Best Practices

Been meaning to cover this for over a week.  The Sedona Conference® (TSC) and its Working Group 6 on International Electronic Information Management, Discovery, and Disclosure (WG6) has announced that The Sedona Conference Commentary on Cross-Border Privilege Issues (“Commentary”) has been published for public comment.

As stated in the email notification I received: “In our increasingly global world, multijurisdictional conflicts (and their attendant privilege issues) are becoming more common. Protections that limit discovery of documents and information under doctrines such as attorney-client privilege and the work-product doctrine vary from country to country. The differences are greatest between common law and civil law jurisdictions, reflecting material differences in the scope of discovery between these jurisdictions.”

So, this 69-page PDF Commentary, available here for free download, provides an overview of select laws and the differences between them and sets forth practice points to consider in managing and resolving the conflicts that can arise in multijurisdictional matters where the protections afforded in one jurisdiction may not be recognized in, or may be in conflict with, those of another.

The Commentary contains five sections in all.  Section II of the Commentary broadly explains the distinctions between common law and civil law privilege and other legal protections against disclosure. Section III lays out practical considerations for navigating these differences. Section IV explores the choice-of-law analysis used by some courts for deciding the application of privilege laws. Section V provides an appendix of privilege and other legal protections in selected exemplar jurisdictions.

The Commentary on Cross-Border Privilege Issues is open for public comment through December 13, 2021. Questions and comments may be sent to comments@sedonaconference.org. The drafting team will carefully consider all comments received, and determine what edits are appropriate for the final version.

A webinar on the Commentary will be held in the next month or so and will be announced by email and on The Sedona Conference website. The webinar will give you the opportunity to ask questions and gain additional insight on this important topic.

So, what do you think?  Are you struggling with cross-border privilege issues in your multijurisdictional cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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