Last Friday, The Sedona Conference^® (TSC) announced that its Commentary on Proportionality in Cross-Border Discovery has been published for public comment.

The Commentary on Proportionality in Cross-Border Discovery has been released by TSC’s Working Group 6 on International Electronic Information Management, Discovery, and Disclosure (WG6). It examines the landscape of overlapping proportionality and comity analyses, offering summaries and commentary on various approaches before recommending a framework that starts with proportionality as a first step – as a threshold issue of discovery scope – while recognizing that proper proportionality analysis may consider the effect of compliance with the non-U.S. law at issue. If the discovery is proportional to the needs of the case, when so considered, then a separate comity analysis should be conducted. Although those analyses share similar factors, applying them in strict order should minimize analytic and doctrinal problems.

This Commentary also examines the potential costs and burdens of cross-border discovery, including nonmonetary risks and burdens associated with measures implemented to comply with non-U.S. laws, and advises that arguments based on such burdens should be made with sufficient specificity and detail. Further, parties and courts should employ and encourage practices that promote compliance with the non-U.S. laws while reducing burdens of cross-border discovery.

The 66-page Primer (available here for free download) discusses topics including the scope of US discovery and proportionality, non-US data protection laws like the General Data Protection Regulation (GDPR), comity considerations like the Hague Convention, US proportionality rules applied in a cross-border context, a recommended approach for US courts applying proportionality analysis in a cross-border context (including a handy one-page flowchart!), and practice points for addressing proportionality in a cross-border context.

The Sedona Conference Commentary on Proportionality in Cross-Border Discovery is open for public comment through August 28, 2024. 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. You know the drill. 😉

So, what do you think? Has your organization struggled with conducting cross-border discovery proportionally? Please share any comments you might have or if you’d like to know more about a particular topic.

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