When I was a young litigation partner (say about twenty years ago), collecting discovery documents was easy. Opposing counsel would send over 20 or 30 requests for production. I would read through them to see which could be dismissed as overbroad or otherwise improper. I would then send the remainder to my client with a note asking him or her to round up whatever could be found and send it back to me or my paralegal.
A few weeks later my client would send over a box of paper documents. We would stamp numbers on them, make a copy of everything and call opposing counsel for the production. In turn, opposing counsel would speak with their clients and send requested documents to me. That was about it for document productions.
It isn't that easy today. In the digital age, the volume of documents has gone up substantially and most documents are now in electronic form. Rather than a quick telephone call, collections have become a complicated technical process involving networks, hard drives and a multitude of other devices. To make matters worse, courts increasingly are imposing sanctions against lawyers and inside counsel if the collections aren't done right. Qualcomm is a good recent example (see my earlier columns on this case), but it isn't the first, nor will it be the last.
The problem is compounded if your client is a multi-national. What if your client has employees in London or Brussels or perhaps Munich? What if they have been exchanging emails and electronic files that are relevant to your case? Is collection just a matter of a phone call to the foreign office? Can I dispatch a technical person to Europe to retrieve hard drives and PST files?
The short answer is no. The rules for collecting data in other countries are different than in the U. S. and those differences are important. If you collect the wrong data in the EU or collect the right data the wrong way, the penalties could be more severe than monetary sanctions. You might end up in jail.
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