International Ediscovery - Navigating APAC Ediscovery

The digital age continues to expand global interconnectedness with alarming speed. With an increasing number of multinational corporations and entities, expertise in international ediscovery is a must for legal practitioners. However, establishing a sound basis in international ediscovery is no easy task, as U.S. Courts are typically unfamiliar with foreign laws and fundamental differences in legal systems and data protection laws add layers of complexity to ediscovery undertakings. Despite these challenges, litigants can arm themselves by keeping pace with evolving laws, practices and complexities in ediscovery across the globe.

Among the many areas evolving their ediscovery and data protection laws, the Asia-Pacific region (APAC) is by far experiencing the most rapid change. With APAC countries, there are unique considerations and challenges that multinational organizations and their counsel must consider for ediscovery.

Ediscovery Developments in APAC Countries

Each country in the APAC region has its own discovery rules based on their respective legal heritages. Hong Kong, a former British territory and a Special Administrative Region of China, applies traditional English discovery law, making it most amenable to U.S. discovery laws and practices. Both Hong Kong and Singapore offer International Arbitration Centres to assist parties in dealing with legal matters involving ESI. Singapore also recently amended existing ediscovery Rules of Court to prioritize “good faith collaboration” by litigants and guidance for ediscovery protocols in volitional or ordered ediscovery exercises.  Japan has begun deliberations on implementing ediscovery laws, but the Japan Privacy Act permits the conditional transfer of personal information from a corporate entity to a third party.

Although several APAC countries provide ediscovery guidance, several environments prove extremely challenging for ediscovery—for example China and South Korea. In South Korea, ediscovery law is still relatively non-existent.  In China, the transfer of state secrets out of the country is illegal, and a central framework has yet to be established.

Practical Tips for APAC Ediscovery

On its face, handling ediscovery in light of these varied laws seems a daunting task. To help navigate these tricky waters, consider these five tips, which will help minimize missteps in APAC ediscovery:

1. Ediscovery in APAC is more than just translation. Due to vast differences in the legal systems, U.S. attorneys—even those proficient in an Asian language—may struggle with APAC ediscovery.
2. Beware of nationalist challenges. Nationalism may thwart U.S. litigation collection efforts, and parties may question why APAC privacy considerations do not trump U.S. discovery laws. Many APAC companies have trouble understanding why an American court would require a party to collect and exchange massive amounts of data.
3. Capture full forensic images and conduct thorough 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 names during client interview.
4. Watch for international data nuances. In the APAC region, software packages may be different than they are in the United States, and often older versions are commonplace. Furthermore, multilingual software platforms generate different metadata fields than U.S. software platforms, and this metadata may be in different languages. Additionally, use of free e-mail packages is more prevalent, and an attorney may need to collect ESI from several e-mail systems. Finally, APAC companies tend to encrypt more data, so prepare to conduct a fair amount of password cracking.
5. Do not overlook paper documents. Unlike the U.S., APAC businesses still tend to rely heavily on paper documentation. Pay special attention to paper in the APAC region, given that paper sizing and formatting may be different. Understand that Optical Character Recognition (OCR) is often not available for many non-English languages.

Final Tips

Although there are a multitude of differences with APAC ediscovery, several universal best practices hold true for APAC ediscovery. Chiefly, IT and legal departments must be on the same page, technologies must be validated, and service providers in the region must be thoroughly vetted.

Finally, American attorneys should engage local counsel and service providers experienced in APAC ediscovery to better explain unique APAC considerations, such as sovereignty issues, integrating paper and ESI into one database, and collecting data before spoliation occurs. Overall, APAC ediscovery laws have proven extremely agile, so litigants should thoroughly prepare to encounter any of these unique challenges to stay afloat in these ever-changing waters.