The Potential impact of Article 48 of the General Data Protection Regulation on Cross Border Discovery from the United States

It is well understood that there is significant tension between the discovery process in the United States (U.S.) and the European Union Data Protection Laws based on the Directive 95/46/EC (the “Directive”) as implemented in the member states.1 Substantially, much less perfectly, complying with the laws of all international jurisdictions is a difficult, if not impossible, task for multinational companies doing business in the U.S. and the European Union (EU).

On May 25, 2018, the General Data Protection Regulation (GDPR) will become the law in all the member states and replace laws implementing the Directive. In many respects, the GDPR is similar to the Directive, but certain aspects of the regulation are different and may also impact U.S. discovery and parties’ ability to produce responsive information containing personal data of EU data subjects to opposing parties and U.S. courts. This paper focuses on the impact of the newly introduced provision, Article 48.

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