Reducing discovery challenges within cross border litigation

Within each region there are focal cities to use as resource hubs for your litigation support and e-discovery requirement

Today’s global economy has generated multi-national companies of all sizes, with offices spread across continents and jurisdictions that render the “copy and ship” approach to discovery as a potential disaster. But can the use of mobile technology and cloud computing mitigate these challenges? This article will look at these challenges and outline what your company should be aware of and what precautions you can take to ensure you avoid any disasters. This three-part series will consist of the following topics: available resources (vendors, consultants) outside of the United States; effects of cultural differences and data privacy regulations; and innovative use of technology.

Does litigation support have a passport?

Contrary to popular belief, it can be extremely difficult to find experienced litigation support and electronic discovery resources outside the United States. Where one might expect to simply make a quick call to any number of locations in Europe or Asia, there simply are not any local vendors or consultants and, if there are, their qualifications are questionable. Yes, those horrible words “travel cost” from a regional hub must be discussed!

Why is this the case? Quite simply, there is not enough demand to support such businesses, as these countries are within civil law jurisdictions, not the common law that is practiced in the United States, United Kingdom, Canada, India, Singapore and many former British colonies. Discovery is not part of civil law, and thus there is not a demand for an industry to support it. In fact, in many countries, discovery is actually frowned upon, making the entire process quite challenging when supporting a matter based in the United States.

Fortunately, within each region there are focal cities to use as resource hubs for your litigation support and e-discovery requirement, with vendors and consultants able to nimbly and knowledgably leverage local resources to capture paper and electronic data as required for your case. Alternatively, some of the large accounting and consulting firms have in-house talent in certain offices — or which can be moved from office to office.

Destination e-discovery

Africa: Very little litigation support resources exist in Africa outside of South Africa, where those resources exist in Johannesburg and Cape Town.

Asia: Hong Kong, Singapore and Tokyo have the most litigation support resources in the Asia-Pacific region, with Singapore being a trendsetter in the region for their efforts to become a hub for law, arbitration and legal technology.

Europe: London remains the central resource of litigation support in Europe, with a handful of vendors scattered across the continent primarily supporting transactional work.

South America: Brazil has a growing litigation support and electronic discovery industry centered in Sao Paulo, with other South American countries growing at a slower pace as FCPA investigations and due diligence matters grow within the region.

This is how we do it…

Well, that statement simply does not matter when you are working in a foreign country, and it is best to take a different approach to discovery, both in budgeting and in timelines. A last-minute, bottom-dollar request to image hard drives in Hanoi or scan boxes of paper in Bucharest will simply end up a mess, if it is able to be undertaken at all. Attorneys and end clients need to be prepared for extended timeframes and budgets in comparison to what is typically experienced in the United States.

Some key points to consider with cross border discovery matters:

  1. Fees will rarely be the same as they are in the United States, as there is less competition.
  2. Some countries require visas for entry, and that process can sometimes be measured in weeks.
  3. Customs can tie up equipment or hard drive shipments for days without notice or reason.
  4. Regulations make it a crime to ship personal data beyond certain borders.
  5. Some cities do not have frequent air or rail access to enable quick trips.

And finally, various cultural and location differences may impact the success of a cross-border discovery matter. These will be discussed in Part 2 of this series.

Contributing Author

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Brad Mixner

Brad Mixner is CEO of Global 7 Technologies, the makers of Global Discovery Network, a secure cloud-based virtual data room that is used...

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