Antitrust e-Discovery: Snags and Solutions

Antitrust e-Discovery: Snags and Solutions

In order to help address the issues that arise as antitrust e-discovery crosses international borders, Ernst & Young held the webinar “Anticipating Pitfalls in Cross-Border Antitrust eDiscovery.” Topics discussed, as Inside Counsel reported, ranged from national and jurisdiction-specific privacy to practical tips for cross-border discovery.

According to panelist Chris Wall, a senior manager at Ernst & Young, as multinational companies generate more and more data, it’s subject to search, review and production to requesting parties in the United States and abroad, which creates a balancing act for regulators between accessing data for analysis and protecting personal information and state secrets.

As they say, location, location, location. Again according to Wall, the location of companies’ data and that of the data cloud has an impact on how and where the data flows.

Because mergers and acquisitions are affected as well, Wall shared a few common e-discovery pitfalls in cross-border merger control:

– No privacy plan for each jurisdiction and not enough time to address privacy concerns
– Failing to identify jurisdictions where privacy or data protection issues might arise
– Failing to put appropriate documentation or other safeguards in place to mitigate privacy risk
– No process for removing personal information or state secrets before transfer

Another webinar panelist, Holly Frost, also a senior manager at Ernst & Young, offered a few tips:

– Identify documents that might contain personal information or state secrets and segregate them.
– Engage in a dialogue with antitrust regulators early in the process and discuss privacy concerns associated with the requested documents.
– Double-check documentation so third parties who access the data are covered by a model contract or other terms.

Stable advice for multinational companies in an unpredictable time

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