There is no question that globalization has met the corporate world head-on, and the digital age promises to push the international business community to become even more interconnected. In this expanding global environment, it is imperative that corporate attorneys establish expertise in international e-discovery law. Experiencing the fastest rate of evolution in e-discovery is the Asia-Pacific region (APAC). This evolution has created a number of challenges for corporate counsel of multinational organizations.
Overview of global e-discovery
In almost every country, the discovery of data, especially electronically stored information (ESI), is becoming an increasingly critical aspect of litigation, given the multinational character of a growing number of corporations. However, U.S. courts are usually unfamiliar with, and take a dim view of, foreign law. Furthermore, problems with foreign discovery are driven by deep fundamental differences in legal systems and various data protection and privacy laws and practices. Despite these challenges, corporate lawyers must seriously undertake their responsibility to understand the complexities of engaging in e-discovery at the international level, especially because such laws and practices are quickly developing and changing across the globe.
Recent e-discovery developments in APAC countries
Each country in Asia has its own discovery rules based on their respective legal heritages. Several have created special rules for the discovery of ESI, as federal and state courts have done in the U.S. Hong Kong, as a former British territory and a Special Administrative Region of China, uses traditional English discovery law, which makes Hong Kong the APAC country most amenable to U.S. e-discovery efforts. The Hong Kong International Arbitration Centre is an established resource that assists parties in dealing with matters in which the exchange of ESI is involved.
Singapore is equally advanced in dealing with these matters, given the existence of the Singapore International Arbitration Centre and a voluntary opt-in e-discovery practice, but discussions are still in progress on implementing data protection and privacy legislation. Japan has likewise just begun deliberations on the implementation of e-discovery laws, but the Japan Privacy Act permits the conditional transfer of personal information from a corporate entity to a third party.
Some of the most challenging e-discovery environments are in China and South Korea. In South Korea, e-discovery law is still relatively non-existent. China, on the other hand, deals with data protection and privacy issues on a piecemeal basis. Specifically, the transfer of state secrets out of the country is illegal, and a central framework for governing e-discovery matters has yet to be established.
Looking in from the outside, handling differences in e-discovery law seems a daunting task for U.S. corporate lawyers. However, there are six practical tips to deal with these issues.
- E-Discovery in APAC is more than just translation. Even a U.S. attorney proficient in an Asian language will struggle with APAC e-discovery because of vast differences in the legal systems. Most APAC companies cannot fathom why an American court would require a party to collect and exchange massive amounts of data.
- Be cautious of nationalist challenges. Strong nationalism may thwart U.S. litigation collection efforts, as parties question why APAC privacy considerations do not trump U.S. discovery laws.
- Capture full forensic images and conduct client interviews. Because of geographical and nationalist challenges in APAC, a lawyer cannot risk an insufficient collection. As such, active data capture is not recommended in the APAC region. Along the same lines, it is especially important to ask custodians for all spelling variations of their name during the client interview.
- Watch for international data nuances. In the APAC region, software packages may be different than they are in the U.S., and often older versions are commonplace. Furthermore, multilingual software platforms generate different metadata fields than U.S. software platforms, and metadata fields may be in different languages. Finally, use of free email packages is more prevalent, and an attorney may need to collect ESI from several e-mail systems.
- APAC companies tend to encrypt more data. Build a workflow into collection and review for handling password protected documents. Keep a list of passwords found during document review, and be prepared to use password cracking software.
- Do not overlook paper documents. Unlike in the U.S., APAC businesses still rely heavily on paper documentation. Pay special attention to paper in the APAC region, given that paper sizing and hole punching may be different. Optical Character Recognition (OCR) often is not available for many languages.
Despite differences, some things remain the same between U.S. and APAC e-discovery best practices. A corporation’s legal and IT departments must be on the same page, technological capabilities must be validated for multilingual capabilities and service providers in the APAC region must be thoroughly vetted. Perhaps most importantly, local counsel experienced in e-discovery collections or local service providers can greatly assist U.S. attorneys by acting as a mitigating party, explaining sovereignty issues, integrating paper and ESI into one database and collecting data before spoliation occurs. Overall, APAC e-discovery law has proven to be extremely agile, thus, it is important for corporate counsel to keep afloat in these ever-changing waters.