eDiscovery and the Right to Delete

Keyboard greyed out with big red delete button

Legaltech News analyst, Isha Marathe, set forth the considerations for eDiscovery, eDisclosure, Information Governance, privacy and compliance professionals when addressing discovery challenges around the “Right to Delete” contained in most privacy statutes and practices across the globe.

The analysis includes thoughts from David Kessler, global head of eDiscovery and information governance and head of privacy at Norton Rose Fulbright and Dave Cohen, chair of EDRM Trusted Partner, Reed Smith’s records and e-discovery group, and chair of EDRM’s Project Trustees, and Mary Mack, CEO and chief legal technologist for EDRM.

Dave Cohen sees a glass half full, with information governance practices being brought to bear to “cut down on the risk of these processes by retaining less data and not retaining it for too long,”

…these concerns have actually led companies to undertake more routine data remediation. In the absence of litigation, companies should always be eliminating data they no long need.”

David Cohen, chair, Reed Smith’s records and eDiscovery group

David Kessler notes the absence of a clear exemption in the GDPR for routine US eDiscovery:

People know they have a duty to keep, and then they hear they have a duty to delete and they immediately think there is a conflict. Plus, remember that the ‘right to delete’ [right to be forgotten] is what some of us have heard initially from the EU law [GDPR], and there is an actual conflict there because those data deletion statutes don’t have a discovery exemption. Discovery is not something that happens very much in the EU. But still, there is no clear exemption for U.S. cases, and you can see the potential for conflict there.

David Kessler, head of eDiscovery and information governance, head of privacy at Norton Rose Fulbright

Read the entire analysis here.


  • Mary Mack

    Mary Mack is the CEO and Chief Legal Technologist for EDRM. Mary was the co-editor of the Thomson Reuters West Treatise, eDiscovery for Corporate Counsel for 10 years and the co-author of A Process of Illumination: the Practical Guide to Electronic Discovery. She holds the CISSP among her certifications.

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