October 14, 2015 – Electronic Discovery Law

Transfer of Employees’ Personal Data from Germany to the United States under German Data Privacy Law

Oct 14 2015

By Nicolas Roggel, Dr. Friederike Gräfin von Brühl, K&L Gates, Berlin

THE ISSUE

Following the ECJ’s decision in the “Schrems” case which has invalidated the Safe Harbor framework (click here for our firm’s recent alert on this matter) multinational corporations may now face profound privacy law related compliance issues in a multitude of jurisdictions.

In the Schrems decision, the ECJ held that the widespread practice of U.S. companies to self-certify under the Safe Harbor standards in order to legitimize data transfers from EU companies to U.S. companies does not provide for an adequate level of data protection. As a result the court held that the Safe Harbor principles are invalid and thus shattered the legal basis for the data transfer from countless EU entities to U.S. entities. The ECJ substantiates its decision with the fact that all personal data stored in the United States is subject to almost unrestricted and unpredictable access by U.S. authorities, that the data subject has no legal way to prevent this access, and that subordination under the Safe Harbor statute does not mitigate this threat. The ECJ considers this situation to be a major and unjustifiable violation of EU citizens’ fundamental rights and requires local data protection authorities to assess the admissibility of data transfers without relying on the subordination of U.S. companies under the Safe Harbor regime.

Click here to read the full article.

U.S.-EU Safe Harbor Invalidated. What Next?

Oct 14 2015

By: Martin Stern and Samuel Castic

On October 6, the U.S.-EU Safe Harbor was invalidated in a European Court of Justice decision in Schrems v. Data Protection Authority. Thousands of companies have certified as compliant with the Safe Harbor framework, and may need to reevaluate the legal basis for transfers of personal data from the EU to the U.S.

Learn more in our alert “Did the ECJ Kill the Safe Harbor Framework on E.U.-U.S. Data Transfers?”, and view a webinar on this topic here.

Court Approves Use of Search Terms to Identify Materials for Preservation

Oct 14 2015

You v. Japan, No. C 15-03257 WHA, 2015 WL 5542539 (N.D. Cal. Sept. 16, 2015)

In this case, the court entered an order requiring preservation, including “interdiction of any document-destruction programs and any ongoing erasures of e-mails, voice mails, and other electronically-recorded material.” In the course of its business, one defendant, the publisher of a daily newspaper, employed a proprietary application “used for laying out each edition of the newspaper.” The application retained a “back catalog” of 90 days. In response to the court’s order, the defendant alleged that retention of the application’s contents for longer than 90 days could “slow down the system or cause it to crash” and that although it could install a new storage system, it would cost $18 million and could take up to eight months. Accordingly Defendant sought permission to employ certain search terms to be run across the application twice monthly to identify articles to be preserved. Defendant alleged that it had “already run several searches using [the proposed] terms and found they yielded duplicative results,” but indicated it would use the terms “out of an abundance of caution.” Defendant further explained that because the proposal “would not cease ‘all ongoing erasures of electronically-stored material,’” it sought court approval for its proposed method.

Plaintiffs opposed the proposal and argued that it could lead to the destruction of “evidence of [Defendant’s] state of mind in selecting and editing its articles” which could be relevant to Plaintiffs’ claims of defamation and intentional infliction of emotional distress. Plaintiffs also identified an additional search term that the defendant had not proposed.

With the addition of Plaintiffs’ proposed term, the court found Defendant’s proposal “sufficiently broad” to identify and preserve potentially relevant articles and granted permission for Defendant’s proposed preservation protocol.

A copy of the court’s order is available here.

Archive - October 14, 2015