Today’s global economy has generated multinational companies of all sizes, with offices spread across continents and jurisdictions that render the “copy and ship” approach to discovery 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 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.
Stop in the name of the law!
Once you have identified the appropriate resources to manage your cross-border discovery matter, it is critical to understand the regulations of the entities that have jurisdiction over the discovery data, whether it be paper or electronic. In today’s world of increased personal privacy protection, many countries and regional organizations have enacted strict guidelines, regulations and even criminal laws regarding the use, processing or removal of personal data beyond certain borders without the expressed written consent of the individual. Most notable in this regard would be France and the European Union, but there are other countries throughout the world following the lead of Europe.
Beyond data privacy regulations, it is also important to note that there are countries that have strict regulations about the export of data for matters of secrecy and national security. China typically requires a detailed review of all data related to any organization associated with the government or Communist Party before it is permitted to leave the country.
While all of this may appear intimidating and burdensome, much of the stress can be relieved by retaining local counsel with intimate knowledge of the jurisdiction as well as relying on regional legal technology resources that reduce the need to turn to the traditional “box and ship” approach to international litigation support.
It’s off to work we go . . .
The United States is well known for the “can do, get it done, 24/7/365” approach within its business culture, where working extended, night or weekend hours is a common practice, especially with looming deadlines. However, you will often find that this cultural aspect is unique to the United States, and most countries have cultures — and even regulations — that promote a balanced lifestyle and a standard eight-hour workday. As such, project planning for cross-border discovery matters will always involve additional research, typically require additional staff if there is a human component and most likely take a longer time to complete in comparison to projects similar in size undertaken in the United States.
Advanced preparation may certainly alleviate these potential human resource issues. As one example, consider that many buildings will be closed nights and weekends with a need for executive approval to be opened for project use. There are many stories of international project teams being unable to work over critical “catch-up” weekends because they were not cleared to be in the building or the business was simply closed.
Know before you go
Cultural differences and data privacy regulations can have a significant impact on cross-border litigation, creating potential challenges for companies, vendors and law firms involved in the discovery process. These challenges can be mitigated through careful preparation and the understanding that other jurisdictions and cultures can, and will, operate in a different manner.
Part three of this series will cover the innovative use of technology to reduce discovery challenges within cross-border litigation.