International Electronic Discovery: The Reluctant Employee Dilemma Nicole B. Boehler Senior Associate Smith & Partners www.sandplaw.com Revision: 06-Jun-07 Print: 06-Jun-07

“No aspect of the extension of the American legal system beyond the territorial frontier of the United States has given rise to so much friction as the requests for documents in investigation and litigation in the United States.” Restatement (Third) of Foreign Relations Law § 442 Reporter’s Note 1 (1987). Revision: 06-Jun-07 Print: 06-Jun-07

e-Discovery is Now So Common – It‘s a Dilbert Theme Revision: 06-Jun-07 Print: 06-Jun-07

Conclusions re e-Discovery in U.S. Litigation e-Discovery is here and here to stay e-Discovery will be the one of the most difficult, time consuming and hard-fought litigation subjects for years to come We all need to prepare for the tsunami and learn how to surf it – or risk being washed away by it! e-Discovery will involve an incredible volume of previously unaccessed information e-Discovery must be handled properly so as to avoid extremely serious sanctions e-Discovery requires the entire litigation team to have deep company IT knowledge and lots of internal cooperation/support Revision: 06-Jun-07 Print: 06-Jun-07

But You’ve Done Your Homework Completed corporate IT Audit Created, implemented and maintain comprehensive document retention and destruction policies Named an e-Discovery „Disaster Master“ Formed an e-Discovery taskforce comprised of attorneys and IT professionals But what about the reluctant employee? Revision: 06-Jun-07 Print: 06-Jun-07

The Reluctant Employee Feels that US litigation and discovery are intrusive and burdensome … and keeps him from doing his job, and e-Discovery even more so Has actual and perceived privacy rights – at work and at home with respect to work done there Faces national legal and internal corporate rules, norms, and constraints regarding document retention and destruction – and what he can ask his employees to do Experiences real language and cultural barriers Revision: 06-Jun-07 Print: 06-Jun-07

Helping The Reluctant Employee Cope & Comply Explain and train – and then explain again Know the local laws and customs regarding workplace privacy Know the local laws and internal corporate rules, norms, and constraints regarding document retention and destruction – and assist your client to ensure compliance with both US and non-US rules and regulations Conduct e-Discovery with specificity and precision Use local counsel and vendors when necessary Work to overcome language and cultural barriers – it‘s your job, not his Get to know the local customs and holidays Revision: 06-Jun-07 Print: 06-Jun-07

Thank you for your attention! e-Discovery – The Reluctant Employee Dilemma Thank you for your attention! Revision: 06-Jun-07 Print: 06-Jun-07