Last week I had the pleasure of speaking at an Association of Corporate Counsel event in New York. The day-long CLE was dedicated to helping U.S. in-house counsel address international and cross-border litigation issues. Because of Kroll Ontrack’s worldwide network, I am fortunate to regularly collaborate on both matters and educational opportunities with colleagues in the UK, Europe and Asia. For this particular conference, my colleague from the UK and I devoted our session to ethical challenges posed by global ediscovery matters.
Because ediscovery is approached differently in almost every country around the world and international ediscovery best practices are evolving quickly, ethical issues abound. Knowing the country’s approach to ediscovery is integral to ensuring that a multi-national ediscovery project goes smoothly.
Nowhere is there a more diverse set of global ediscovery requirements than in Asia, where ediscovery legislation and best practices are evolving at varying speeds. A worldly ediscovery professional must learn to navigate the legal paradigms and legal technology issues in Asia. Kate Chan, one of my Kroll Ontrack colleagues in Asia, recently wrote an article entitled, “A Guide to Ediscovery in Asia”, to help with just that goal. In her article, she enumerates common APAC ediscovery issues, as well as ways counsel can address international differences in their cases. Below are just a few of Kate’s tips from her article.
APAC Ediscovery: Common Challenges
- Privacy and Confidentiality – These two issues pose the biggest challenges for APAC ediscovery projects, as many professionals have indicated concern regarding the new laws forming in the APC regions around data privacy.
- Cost Control – Many APAC companies are uncertain of how much they need to spend on discovery and feel that discovery creates an unnecessary burden.
- Multi-National Matters – It’s not uncommon in the APAC region for a single legal matter to have data collection and preservation efforts cross multiple national borders, thus complicating international ediscovery procedures.
APAC Ediscovery: Tactics for Success
- Start preservation early to ensure there is enough time to address language and cultural disconnects.
- Capture full forensic images and watch for international data nuances.
- Expect encrypted data more frequently in APAC ediscovery projects, and don’t discount the role that discovery of paper documents will play.
- Build relationships with local counsel and service providers that have deep experiences in Asia.
If you are likely to work on an ediscovery matter with ties to Asia, don’t miss Kate’s entire article, “A Guide to Ediscovery in Asia”. With distinct political, cultural and legislative sensitivities towards ediscovery in China, Japan, Singapore and other countries in the APAC region, you can’t afford not being up to speed.