This note argues that advancements in technology and data analysis have reduced the efficacy of the legal data privacy framework in the United States. Furthermore, foreign law blocking statutes expose litigants and corporations to increased data liability. Indeed, not only do consumers lack adequate legal remedies, but litigants face uncertain legal liability and increased costs. Simply put, updated technology requires updated laws. Better data management protects consumers and data value. A legal framework with clear guidelines for protecting data is needed.
Still, data access is integral to litigation, and courts must balance the need for data against the need for data protection and privacy. An overhaul of how courts handle Discovery proportionality standards, and privacy in those standards, is necessary. Clarifying privacy’s role in proportionality and quantifying when and how data should be limited in Discovery, would help accomplish this. It would also bring current Discovery practices and data management more in-line with foreign privacy law, and potentially reduce costs through standardization. Where costs are an issue, applying cost shifting standards for Discovery in a manner that promotes data security and privacy law compliance can encourage better privacy practices in E-Discovery as well.
Regulatory Responses to Data Privacy Crises and Their Ongoing Impact on E-Discovery,
9 Global Bus. L. Rev.
available at https://engagedscholarship.csuohio.edu/gblr/vol9/iss1/7