Data Privacy, Discovery, and the Expanding Role of Counsel

Information has become the most valuable and most vulnerable corporate asset. Every document, message, and database can represent opportunity or exposure depending on how it is managed.

Counsel are increasingly responsible for balancing privacy, discovery, and operational transparency. Each objective is legitimate on its own, yet together they often collide.

The Privacy Landscape

Privacy regulation has grown in complexity. Frameworks such as the GDPR, CCPA, and emerging state and international laws impose detailed requirements for how data is collected, stored, and shared.

Failure to comply can result in fines, reputational damage, and litigation. Yet compliance alone does not eliminate risk. In discovery, organizations may be compelled to produce data that conflicts with privacy obligations in other jurisdictions.

Discovery in a Global Context

Discovery assumes access. Privacy assumes restraint. Reconciling the two requires structured policy and foresight.

Corporate counsel should maintain clear data mapping that identifies where information resides, how it moves, and under which legal regimes it is governed. When litigation arises, this mapping allows counsel to make informed decisions about what can be produced and under what conditions.

Protective orders, anonymization, and data minimization techniques can help preserve compliance while fulfilling discovery duties.

Governance as Prevention

Data governance provides the framework that keeps privacy and discovery aligned. A well designed governance system defines retention schedules, classification standards, and escalation procedures.

When these policies are documented and consistently applied, they create both operational efficiency and legal defensibility. Regulators and courts recognize diligence even when breaches occur.

The Counsel’s Evolving Role

Counsel must now think like technologists and investigators. They must understand how digital evidence is created, how it can be altered, and how to preserve its integrity.

By bridging legal and technical disciplines, counsel can anticipate risk before it becomes exposure. This proactive posture transforms privacy from a reactive burden into a strategic advantage.

Conclusion

Privacy and discovery are not opposites. They are parallel expressions of accountability. When guided by strong governance and informed counsel, they become complementary rather than conflicting obligations.