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The GDPR: Teeth, and Considerations for Corporate Legal Counsel and Discovery Teams

By Ryan Costello

The struggle is real. With the EU's General Data Protection Regulation (GDPR) set to take effect in May of 2018, the serious implications for corporate legal counsel and e-discovery teams are difficult to deny. Among other aspects of its broad reach, the GDPR extends compliance requirements to both data controllers and “processors,” a distinction that certainly includes e-discovery data processing in the context of litigation and investigations. Complicating matters further, the Regulation affords data subjects the “right to be forgotten,” a key aspect that affords individuals that right to request erasure or removal of data from systems and databases, presenting potential new challenges for the collection and hold of data in connection with U.S. discovery requirements.

In addition, the GDPR imposes certain organizational requirements, accountability measures, breach notification requirements and processing system assessments, not to mention specific limitations around the transfer of personal data to third party countries not deemed to provide adequate personal data protections (here's looking at you, Uncle Sam). And all of this is backed by some serious teeth: a tiered financial penalty regime stretching up to 4% of annual global revenue turnover. That can make for some astronomical numbers, and while it's unlikely that such steep fines will be commonplace, it is clear that there is a concentrated effort on the part of regulators to place a level of seriousness around data protection and privacy compliance that rivals anti-trust considerations. The purported penalty scheme and steep financial consequence of non-compliance to the GDPR is, without question, an effort to get companies of all stripes to stand up and take notice.

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