Volkswagen executives confronting the various investigations and lawsuits from its admitted rigging of emissions control may, in the past week, turn to Sir Walter Scott for advice often attributed (erroneously) to Shakespeare: “Oh, what a tangled web we weave when first we practice to deceive.” The company has advised the U.S. Department of Justice (DOJ) that it will not disclose emails of executives in discovery in a civil suit brought by DOJ because to do so would violate German privacy law.
Yet, the company and its outside lawyers are undoubtedly aware that U.S. federal judges don’t take the words “We can’t do that” graciously. Volkswagen, like countless European-based organizations before it, will find a way to produce the requested information.
Volkswagen no doubt fears adverse action by the German Data Protection Authority if it complies with this request, but refusal to produce the data may also raise the ire of DOJ, which is investigating criminal charges, as reported by the New York Times on January 9, 2016. This is a conundrum, indeed, for Volkswagen, though it is a “tangled web” of its own making.
Volkswagen has refused to disclose emails and other communications from executives in a civil action brought by the U.S. Department of Justice, citing prohibitions in the Federal Data Protection Act, Germany’s privacy law. That statute prohibits the disclosure of “personal information,” which includes email, without consent of the affected persons without the consent of the data subject, or for a purpose permitted by the statute.
There are means to produce the information within Germany’s law. Volkswagen could obtain consent from the executives for disclosures of their emails, but consent obtained by an employer is generally considered invalid in Germany because it is not freely given. We have yet to see if this concept would apply to high-level executives. The European Commission, through its Article 29 Working Party of Data Protection, has opined that protected personal information may be disclosed for U.S. civil litigation if certain steps to cull and filter for irrelevant or sensitive material are taken, and local procedures followed for the disclosure. The U.S. District Court could also provide a judicial request to judicial authorities in Germany to obtain the information.
One thing is relatively certain, though: The information will be provided, perhaps in limited form.
If you have questions about collection of data from outside the U.S. for U.S. litigation, please contact Kenneth N. Rashbaum.