How do I conduct a Sedona Conference proportionality and comity analysis to argue against producing personal data protected under GDPR?

Cross-border discovery often forces a collision between a US litigant’s duty to produce relevant evidence and the EU General Data Protection Regulation (GDPR), which restricts processing and transferring personal data. Two analytical frameworks help structure an objection: a proportionality analysis and an international comity analysis. These are advocacy tools, not guarantees — courts decide, and outcomes vary by jurisdiction. Consult qualified counsel before relying on any approach. For broader context, see e-discovery.

Building the proportionality argument

Under the US Federal Rules of Civil Procedure, discovery must be relevant and proportional to the needs of the case. Proportionality weighs factors such as the importance of the issues, the amount in controversy, the parties’ access to information, the resources involved, and whether the burden or expense outweighs the likely benefit.

To argue against producing GDPR-protected personal data, document concrete burdens:

• The volume of personal data implicated and its marginal relevance.
• Legal exposure and penalties the producing party faces under EU law.
• Availability of the same facts through less intrusive means (anonymization, pseudonymization, redaction, sampling, or stipulations).
• Whether the requesting party truly needs identifiable data versus aggregated facts.

Framing privacy compliance as a real cost and risk strengthens the burden side of the proportionality balance.

Building the comity argument

Comity analysis asks a court to respect a foreign sovereign’s laws when they conflict with a domestic discovery order. Courts commonly weigh: the importance of the documents to the litigation, the specificity of the request, whether the information originated abroad, alternative means of obtaining it, and the competing national interests — including the EU’s strong, codified interest in data protection.

The Sedona Conference has published practical guidance on cross-border discovery and protective measures that practitioners use to structure these arguments and propose workable compromises, such as tiered production, protective orders, and EU-recognized transfer mechanisms.

Practical posture

Rather than refusing outright, propose a defensible middle path: minimize personal data, transfer only what is necessary under a valid GDPR basis, and seek a protective order. Preserve relevant records throughout, and tailor every argument to the controlling jurisdiction, since state courts and non-US tribunals apply different rules.